Records v. Powell

• Decision Date: 08 January 1926
• Docket Number: No. 3875.,3875.
• Citation: 278 S.W. 1078
• Parties: RECORDS et al. v. POWELL.
• Court: Missouri Court of Appeals

278 S.W. 1078

RECORDS et al. v. POWELL.

No. 3875.

Springfield Court of Appeals. Missouri.

January 8, 1926.

Appeal from Circuit Court, Lawrence County; Charles L. Henson, Judge.

Action by James L. Records and another, copartners doing business under the name of the Brenard Manufacturing Company, against T. H. Powell. Judgment for defendant, and plaintiffs appeal. Affirmed.

H. H. Bloss and A. N. Walker, both of Aurora, for appellants.

William B. Skinner, of Springfield, and Robert Stemmons, of Mt. Vernon, for respondent.

BAILEY, J.

This is a suit on six promissory notes executed by defendant, payable to the order of the Brenard Manufacturing Company at Iowa City, Iowa, and aggregating the total sum of $253.84. The notes were all dated June 6, 1922, and fell due on different dates; the last one being payable eight months after date. Plaintiffs, James L. Records and Theodore 0. Loveland, were copartners doing business under the name of the Brenard Manufacturing Company, of Iowa City, Iowa. Defendant, by his answer, may be taken in doubtful terms to have admitted the execution of the notes, but he sets up as a defense an agreement in writing which is alleged to have been executed at the time the notes were signed, and to have been a part thereof. This contract provided for the purchase by defendant, of certain "Golden-Throated Claxtonolas" and other accessories, and also stipulated that all the terms of the contract were therein set out. The portion of the contract bearing on the issues raised in this case is as follows:

"If my sales under this contract do not amount to $253.84 you agree to either pay me the difference in cash or repurchase these Golden-Throated Claxtonolas and records, if returned to you in good order, and you are to send your bond in the sum of $253.84 to protect me in the conditions of this contract.

"To make the last above paragraph binding upon you, I agree to furnish, within 30 days from date hereof, ten names and addresses of persons who I believe will buy a style A Golden-Throated Claxtonola, and, for the purpose of introducing the style A Golden-Throated Claxtonola, in my territory, I hereby authorize you to mail one set of Golden-Throated Claxtonola purchase certificates aggregating $75 to each of the 10 names and addresses furnished, and I agree to redeem same in accordance with their face value, each 60 days to furnish you from 10 to 25 names and addresses of persons who may be interested in securing Golden-Throated Claxtonolas, to whom you are to send appropriate advertising matter, take up shipments promptly upon arrival, properly display Golden-Throated Claxtonolas in my store, use ordinary diligence in the sale thereof, promptly meet all obligations entered into under this contract, and to furnish you all reasonable information you request to enable you to assist in the sale of Golden-Throated Claxtonolas.

"You are to have the right to send a special salesman into my territory at any time to do field work and promote the sale of Golden-Throated Claxtonolas through my agency." (Italics ours.)

Defendant further pleaded that, in order to induce him to enter into said contract and execute the notes, defendant's agent fraudulently represented in writing as follows:

"Stotts City, Mo., June 6th, 1922, I guarantee to help sell at least 2 machines before the first note is due in Sept. 6th, 1922. J. L. Swigart, Box 337, Joplin, Missouri."

It is then alleged that said agent failed and refused to assist in selling said machines, and that defendant relied on the representations. No reply was filed, but the parties proceeded with the trial, on the theory that the authority of plaintiffs' agent to give the written guaranty to help sell the machines and thereby bind his principal was an issue and the sole issue in the case. Verdict was for defendant on all the counts of plaintiffs' petition, and plaintiffs have appealed. The only instruction given submitted this issue and to all intents and purposes directed a verdict for defendant. The giving of this instruction is assigned as error, but, as plaintiffs failed to preserve their exceptions in relation thereto by their motion for new trial, we are unable to consider it here.

Plaintiffs further assign as error the refusal of their peremptory instruction directing a verdict for plaintiffs on each count of their petition. Under the accepted rule, if there is any substantial evidence in support of the verdict, we are bound thereby. The evidence shows the contract hereinbefore described was part and parcel of the notes, but had been detached from the notes by plaintiffs. The contract was entered into on June 6, 1922. On June 8, 1922, plaintiffs wrote defendant a letter advising him that they had approved the contract for the two machines, and expressing the desire to—

"so handle this business that this Golden-Throated Claxtonola department will be the most profitable and satisfactory department of your entire establishment, and to this end please be advised that every department of this business will be at your service, and render every assistance possible to attain the end referred to."

On June 7, 1922, defendant wrote a letter to the agent who had sold the machines to him, attempting to cancel the order for the machines, which letter was forwarded to plaintiffs, who, by their letter of June 13, 1922, refused to cancel the order. By their...