Poe v. Western Buyers' Ass'n Wholesale Grocers

• Citation: 238 S.W. 547
• Decision Date: 11 March 1922
• Docket Number: No. 2981.,2981.
• Parties: POE v. WESTERN BUYERS' ASS'N WHOLESALE GROCERS.
• Court: Court of Appeal of Missouri (US)

238 S.W. 547

POE v. WESTERN BUYERS' ASS'N WHOLESALE GROCERS.

No. 2981.

Springfield Court of Appeals. Missouri.

March 11, 1922.

Appeal from Circuit Court, Pemiscot County; Sterling H. McCarty, Judge.

Action by E. W. Poe against the Western Buyers' Association Wholesale Grocers, in which certain property of the defendant was attached. Defendant's plea in abatement denied and judgment rendered for plaintiff on the merits, and defendant appeals. Judgment on the merits affirmed, and judgment on plea in abatement reversed and remanded.

Hall & Billings, of Kennett, for appellant Ward & Reeves, of Caruthersville, and Orville Zimmerman, of Kennett, for respondent.

FARRINGTON, J.

This suit was begun in the justice court, was appealed to the circuit court, and the judgment rendered there, amounting to $240, is appealed from to this court.

The appellant in its briefs alleged that the trial court, in rendering the judgment it did, followed off 24 paths of error. In its briefs on the merits of the case there are 14 assignments of error set forth, and on the attachment there are some 10. It would be impossible for any appellate court to keep its business anywhere without the zone of undue delay if it were required to go into, minutely, in cases of this character, every conceivable wrong that an appellant can raise. We will therefore state the case and apply the law to it which we think governs, and pass over in the course of the opinion much of the alleged error which, when investigated, is fanciful.

The case is this: The defendant Is a wholesale grocer concern, with its principal place of business located at Kansas City, Mo. It carries on its business in the manner following. By getting a field representative or representative to sell goods in certain communities, giving such field representatives the power to hire traveling men and salesmen to sell its goods. These salesmen are furnished samples and list prices by the defendant which is the amount that the defendant must receive when the goods are delivered. These salesmen, who are appointed by a representative and agent of the defendant, the field man, go out with their samples and their prices and get orders in communities for certain of defendant's merchandise. These orders are turned in to the field man by the salesmen, who in turn forwards them on to the Kansas City office. When the company has gotten them in, it makes up a carload lot and sends it down to the community in which the goods have been sold. Some ten days or two weeks prior to the time the car is to arrive at the place where the goods have been sold by the salesmen, the defendant notifies those who have given these salesmen their orders for goods that the car will be at a certain place for delivery on a certain date, and then it is that the customers who have purchased from the salesmen come in and get the goods they have bought and pay the money to a representative of the defendant who accompanies the car; at least, that is what was done in this case.

The testimony of the plaintiff clearly tends to show that he was one of the salesmen who had been set to work for the defendant to sell defendant's goods, and that the arrangement which he had with the defendant's field man was that he, for compensating him in getting these orders and selling the goods, was to have the difference between the list price which had been furnished him by the defendant and the amount at which he had sold the goods to the customers and which amount they paid to the defendant when they got their goods from the railroad car in charge of one of defendant's officers. It is also shown that it was the understanding that in case any of the customers whose names had been sent in and whose goods were sent for delivery failed to take the goods, then in that event the salesman who took the order would pay the freight back on those articles to Kansas City, Mo.

Plaintiff's evidence showed that there was due him from the defendant as commissions on the goods that he took orders for, and which goods were delivered to the customers and the money paid by the customers to the defendant, the sum of $308.00. All of this amount represented orders which the plaintiff himself took except something like $50, which orders had been taken by another man who had been acting for the defendant. plaintiff said that the defendant agreed to accept this as a part of his order, and as the jury found for him we must take that as a fact, which eliminates some of the discussions in the brief concerning the question of a proper allowance. The plaintiff also admitted that there were some goods to be returned, on which he would owe the freight. He therefore allowed the difference between $398.90 and $240, the amount sued for, as what he would owe for return freight. While his testimony is unsatisfactory as to what the freight would be, the defendant knew what the freight would be and made no showing that that was not enough to allow for freight. Under these circumstances, the jury hat a right to believe that a sufficient amount had been allowed to the defendant on account of freight for returned goods.

It is shown by the plaintiff, and witnesses who were in the same position that he was, that is, salesmen and others familiar with the transactions surrounding this lawsuit, that at the first town at which the car stopped there were certain goods delivered; that he was...