Powell v. Crawford

• Decision Date: 22 December 1891
• Parties: POWELL v. CRAWFORD.
• Court: Missouri Supreme Court

17 S.W. 1007

107 Mo. 595

POWELL v. CRAWFORD.

Supreme Court of Missouri, Division No. 2.

December 22, 1891.

LIBEL AND SLANDER — PLEADING.

In an action by a salesman against his employer for slander, the complaint alleged that goods were sold in defendant's store upon partial payments, and the salesmen received a premium for such sales when payment was complete. That, when sold, a ticket was placed upon the goods, indicating the price and the amount of such premium; the goods were placed with the delivery clerk; and, on failure of the purchaser to complete the sale, they were returned to stock. That "cf" on such a ticket meant 75 cents, and "pm" meant premium. That plaintiff sold goods which were marked "as aforesaid," and sent to the delivery clerk, but, not being paid for, were returned to stock. That thereafter defendant, in the presence and hearing of others, said to plaintiff: "Put `cf' on that goods or leave the house. * * * You know you got that pm. You sold that goods just to get that pm," — thereby intending to charge plaintiff with the larceny of 75 cents, and that the hearers so understood. Held, that the complaint failed to state facts sufficient to constitute a cause of action, in that it did not show how much the goods sold for, how they were marked, how much premium plaintiff ought to receive or did receive for making the sale, or that he received anything, or that he was required to mark the goods or did mark them, and that the words used by defendant could not be construed into a charge of the larceny of 75 cents or any other sum, or of fraud.

Appeal from St. Louis circuit court; D. D. FISHER, Judge.

Action by A. W. Powell against Dugald Crawford for slander. Judgment for defendant. Plaintiff appeals. Affirmed.

Lubke & Muench and A. R. Taylor, for appellant. Walker & Walker and W. B. Homer, for respondent.

THOMAS, J.

This is an action of slander, and the petition is as follows: "The plaintiff states that at the times herein stated the defendant and one Alexander Russell were partners in the dry goods business at the city of St. Louis under the firm name of D. Crawford & Co. That at said times there was a usage and custom in the business of said firm to have their salesmen — including the plaintiff, who was at said times in the employment of said firm as a salesman — make sales of remnants of dry goods upon partial payments. That, according to said usage and custom, when a sale of such remnant should be so made by a salesman upon partial payment, there should be placed upon the package of said remnant so sold, by the proprietors of said firm, or by their floor manager, a ticket on which was marked certain letters, which by the usage aforesaid indicated the price at which said package should be sold, as also the amount of the premium or reward which the salesman making such sale was entitled to receive for making such sale, after said remnant so sold had been fully paid for by the buyer, and not till then, as, according to such usage and custom, such salesman was not to receive any premium or compensation for making such sale unless the buyer should fully pay for the goods so sold. That, according to said usage and custom, the letters `cf' stood for and indicated the sum of seventy-five cents, and the letters `pm' meant and indicated the word `premium,' which said usage and custom was well known to all the employes and proprietors of said firm. And according to said custom and usage, when a sale should be made of a remnant upon partial payment, a part payment was made in cash, and said remnant was kept by the delivery clerk until the buyer should fully pay for same, and thereupon said package should be delivered to the buyer, and thereupon the salesman became entitled to receive the premium for making said sale; but, if the buyer did not fully pay for said goods within a reasonable time after such purchase, said remnant was to be returned to the stock of said firm, and there was no premium or compensation to be paid to the salesman for making such sale. And the plaintiff states that on the 26th day of January, 1886, he, as such salesman for said firm, sold a remnant of black silk goods upon partial payment, according to said usage; that the buyer paid thereon the sum of one dollar, and said remnant, according to said usage and custom, was made into a package, marked as aforesaid, and sent to the delivery clerk of said firm to keep until said goods should be paid for in full, or returned to said stock of said firm for failure of the buyer to pay therefor. That on the 2d day of April, 1886, the buyer of said remnant not having paid therefor, said remnant was, according to said usage and custom, returned to the stock of said firm; and upon said day the defendant falsely and maliciously spoke of and concerning the plaintiff the following words in substance: `Powell, put "cf" on that goods or leave the house.' The plaintiff asked defendant, `What do you mean?' Defendant then said, `Do you put "cf" on that goods or leave the house.' Plaintiff then said, `If you will allow me to explain, you will think differently.' Defendant then said. `I don't want any explanation. You know you got that pm. You sold that goods...