Openchain-Boyer Co. v. Village of Mercer

• Decision Date: 29 April 1929
• Docket Number: No. 16397.,16397.
• Citation: 17 S.W.2d 376
• Parties: OPENCHAIN-BOYER CO. v. VILLAGE OF MERCER.
• Court: Missouri Court of Appeals

17 S.W.2d 376

OPENCHAIN-BOYER CO. v. VILLAGE OF MERCER.

No. 16397.

Kansas City Court of Appeals. Missouri.

April 29, 1929.

Rehearing Denied May 20, 1929.

Appeal from Circuit Court, Mercer County; L. B. Woods, Judge.

"Not to be officially published."

Action by the Openchain-Boyer Company against the Village of Mercer. Judgment for defendant, and plaintiff appeals. Affirmed.

L. M. Hyde and J. Hubert Fuller, both of Princeton, for appellant.

A. G. Knight, of Trenton, and H. J. Alley, of Mercer, for respondent.

ARNOLD, J.

This is an action to recover the purchase price of two 45-gallon portable chemical fire engines, alleged to have been sold and delivered by plaintiff to defendant for the price and sum of $750.

The facts of record are that plaintiff is a corporation, organized and existing under the laws of the state of Indiana, with its principal office at the city of Logansport in said state; that defendant is a municipal corporation, organized and existing under the laws of the state of Missouri relating to towns and villages, and was a duly incorporated, organized, and existing village thereunder and located in Mercer county. On May 23, 1917, plaintiff shipped to defendant two 45-gallon chemical fire engines No. 85, consigned by bill of lading to "Town Clerk, Mercer, Mo." The said engines were received by the consignee, and on August 13, 1917, a warrant was issued in the sum of $19.68, in favor of A. A. Alley, in payment of the freight charges on the "two fire engines," and on the same date three warrants in the sum of $250 each, due in one, two, and three years, were issued in favor of plaintiff "for payment for two fire engines No. 85." Though presented, these warrants were never paid, nor any part thereof, and the said fire engines have remained in possession of defendant. Prior to the issuance of said warrants there was some correspondence between the mayor of defendant village and plaintiff relating to the method of paying for the engines.

The amended petition upon which the cause was tried is in four counts, one on the contract of sale and the other three based upon the warrants. The answer was a general denial, no affirmative defense being pleaded. At the close of plaintiff's evidence the court gave a peremptory instruction in the nature of a demurrer in favor of defendant. Plaintiff took an involuntary nonsuit with leave to move to set the same aside. Such motion thereafter was duly filed and overruled and it is from that ruling this appeal is taken.

The assignments of error include (1) the ruling of the court in sustaining a demurrer to plaintiff's evidence; (2) in giving the jury the peremptory instruction; (3) in refusing to submit the issues to the jury; (4) in overruling the motion to set aside the involuntary nonsuit; and (5) in refusing to set aside the nonsuit. These assignments all relate to the action of the trial court in giving the peremptory instruction in favor of defendant, and therefore may be considered together.

It is plaintiff's position, for which it strenuously contends, that the evidence shows a prima facie case for plaintiff and, therefore, the case should have gone to the jury. The petition alleges there was a written contract between plaintiff and defendant for the purchase of the two fire engines involved in this controversy, for the price of $750; however, the testimony shows this written contract was lost and could not be introduced in evidence. After the oral showing of such loss, it was shown by entry in the records of defendant village that such a contract was executed and signed by all the members save one of the village board, and also by letters passing between plaintiff and defendant's mayor. It was further shown that the alleged contract was fully performed by plaintiff and the engines delivered in accordance with its terms. It was also shown that the said engines were never paid for, nor any part of the purchase price thereof; that the warrants were issued as alleged, on their face in legal form, each containing the provision they were to become due and payable after the current year of their issuance.

Plaintiff insists that by the testimony above mentioned it made a prima facie case and was entitled to go to the jury upon the showing: (1) That a written contract was executed by defendant; (2) that the contract was fully performed by plaintiff; and (3) that the chattels contracted for and delivered were not paid for by defendant. It is defendant's position in this respect that the action of the trial court in giving the peremptory instruction was proper because there was neither a resolution nor an ordinance passed by the board of aldermen of defendant village authorizing the purchase of the fire engines for which the warrants were issued.

It is true there is no showing of record that such an ordinance was passed by the board of aldermen. The defense against plaintiff's action is based upon this fact. Defendant insists that in the absence of an authorizing resolution or ordinance the individual person or persons signing the contract, if any, and the person or persons signing the unauthorized warrants, are personally liable, and not defendant.

Section 8547, R. S. 1919, applying to towns and villages, provides, among other things: "May Pass What Ordinances.—Such board of trustees shall have power to pass...