R. C. Stone Milling Co. v. McWilliams

• Citation: 121 Mo. App. 319,98 S.W. 828
• Parties: R. C. STONE MILLING CO. v. McWILLIAMS et al.
• Decision Date: 22 December 1906
• Court: Court of Appeal of Missouri (US)

98 S.W. 828

121 Mo. App. 319

R. C. STONE MILLING CO. v. McWILLIAMS et al.

St. Louis Court of Appeals. Missouri.

December 22, 1906.

1. PRINCIPAL AND AGENT—MUTUAL RIGHTS— LIABILITIES OF AGENT.

An agent, pursuant to contract, bought a quantity of wheat for his principal, as shown by his reports and the amount of the checks, signed by the principal in blank, used by the agent to pay therefor. The agent shipped the wheat to the principal, and a shortage in the quantity thereof was discovered. Held that, if the agent shipped to his principal all the wheat he bought for him, he was not liable for the shortage.

2. SAME—EMBEZZLEMENT—BURDEN OF PROOF.

A principal, averring that his agent, authorized to buy wheat and pay therefor with checks signed by the principal in blank, had embezzled a part of the wheat bought, has the burden of proving, not only a shortage in the quantity of the wheat, but that the shortage resulted from a felonious conversion of the wheat by the agent.

3. ATTACHMENT — GROUNDS — EVIDENCE — BURDEN OF PROOF.

To sustain an attachment in an action for the embezzlement of a quantity of wheat bought by an agent for his principal on an affidavit averring that the agent embezzled the property of his principal, the principal has the burden of proving that he owned the wheat alleged to have been embezzled, and that the agent appropriated the same to his own use without the consent of the principal, and with the intention of depriving him of his property.

4. APPEAL—DISCRETION OF TRIAL COURT—REVIEW.

The discretion of the court in determining whether documents in evidence shall be put in the hands of the jury on their retiring to consider their verdict is not reviewable on appeal, in the absence of an abuse of discretion.

5. TRIAL—DELIBERATIONS OF JURY—TAKING DOCUMENTS TO JURY ROOM.

Where, on an issue whether an agent, authorized to buy wheat for his principal paid for by the principal's checks, had embezzled a part of the wheat bought, the agent's daily reports, checks, and weight cards showed a shortage in the alleged quantity of the wheat bought, so that the controverted fact was whether or not the shortage was the result of an embezzlement by the agent, the court did not abuse its discretion in declining to put the daily reports, checks, and weight cards in the hands of the jury on their retiring to consider the verdict.

Appeal from Circuit Court, Newton County; F. C. Johnston, Judge.

Action by the R. C. Stone Milling Company against J. W. Williams and another, partners. From a judgment for defendants on the plea in abatement to the attachment issued in the action, plaintiff appeals. Affirmed.

This action is to recover $707.72, the value of 1,015 bushels of wheat alleged to have been embezzled and converted by defendants. An attachment in aid of the suit was issued on an affidavit alleging: "This action is brought for injuries arising from the commission of a felony by the defendants, in this: that defendants embezzled and converted to their own use the property of plaintiff, to the value of $707.72." A plea in abatement to the attachment was filed, and the issues raised thereby were tried to a jury, resulting in a verdict for defendants. Plaintiff recovered judgment on the merits of the action, and the appeal is from the verdict and judgment on the plea in abatement.

Defendants are partners and operate a small mill at Wentworth, Mo. Plaintiff operated several mills in southwest Missouri, one at Republic. In November, 1900, the parties entered into an agreement whereby defendants were to buy wheat at Wentworth for plaintiff and ship as directed. Plaintiff, in advance of purchases, signed blank checks and delivered them to defendants, with authority to fill them out and deliver them in payment for wheat as needed. Defendants were furnished blanks on which they made daily reports of the number of bushels of wheat bought for plaintiff, the price per bushel, and the number and amount of checks used in payment of the same. On February 8, 1901, a settlement was had between the parties. After this date, five car loads of wheat were shipped by defendants to plaintiff's mill at Republic. These five cars were weighed by the Frisco Railroad Company at Monett, and on their arrival at Republic the wheat was taken out and weighed by plaintiff in its mill. There is no evidence tending to show that any of the cars were defective, or that there was any loss of wheat in transit. But there was a shortage of 1,015 bushels and some pounds, as ascertained from defendants' reports and checks giving the number of bushels of wheat they had purchased for pla...