Reinhart Grocery Co. v. Knuckles
| Decision Date | 08 April 1913 |
| Citation | 155 S.W. 1105,172 Mo.App. 627 |
| Parties | REINHART GROCERY COMPANY, Appellant, v. L. D. KNUCKLES, Respondent |
| Court | Missouri Court of Appeals |
Appeal from Reynolds Circuit Court.--Hon. E. M. Dearing, Judge.
REVERSED AND REMANDED (with directions).
Reversed and remanded.
R. I January for appellant.
(1) All sales by an agent appointed generally to sell must be for a consideration in money and such agent cannot bind his principal by receiving payment in bonds, notes or other paper. 1 Am. & Eng. Ency. of Law, p. 1003; Brown v Smith, 67 N. Car. 245; Buckwalter v. Craig, 55 Mo. 71; Wheeler & Wilson v. Givan, 65 Mo. 94. (2) Parties dealing with an agent are put upon their guard by the fact that they know he is an agent and they do so at their own risk. They cannot rely on the agent's assumption of authority. 1 Am. & Eng. Ency. of Law, p. 987; Bohart v Oberne, 36 Kan. 284; Esarp v. Richardson, 81 N. Car. 5; Ayres v. Milroy, 53 Mo. 523; Chouteau v. Filley, 50 Mo. 174 The duty devolved upon the defendant of ascertaining not only the fact of Talbot's agency, but also the nature and extent of which was conferred. Mechem on Agency, secs. 706-707; Buzard v. Jolly, 6 S.W. (Sup.) 422; Sackville v. Storey, 149 S.W. 239. (3) An agent cannot substitute himself as debtor of his principal in place of the purchaser, so as to release the purchaser for the price of the goods of his principal sold to the purchaser. Wheeler & Wilson v. Givan, 65 Mo. 94; Sherwood v. Neal, 41 Mo.App. 425. (4) If there is no dispute raised by the evidence of the agent's authority, the question of agency and his authority thereunder is a question of law for the court, and it is error for the court to refuse a peremptory instruction at the close of all evidence. Gulick v. Grover, 36 N. J. L. 463; Lamb v. Irwin, 69 Pa. St. 436; Hoster v. Lange, 80 Mo.App. 238.
J. H. Kieth for respondent.
--This is a suit by plaintiff, appellant here, for a balance of $ 144.67, claimed to be due on an open account for groceries sold by plaintiff to defendant. Plaintiff is engaged in the wholesale grocery business in the city of St. Louis, and the defendant is a retailer at Dragonia, Reynolds county, Missouri. The cause originated before a justice of the peace, where there was judgment for defendant, and the plaintiff in due time appealed to the circuit court of Reynolds county.
The defendant in his answer admitted the correctness of the account sued upon, except that defendant claimed that he was entitled to a credit of $ 150 for a note which he had given to plaintiff's salesman and which he avers the latter accepted and for which he agreed to give defendant credit on plaintiff's account. This was a note of one J. R. Miller, payable to defendant, six months after date, and signed by four other persons as sureties. The acceptance of this note by plaintiff, through its agent, was alleged by way of set-off and counterclaim, the defendant averring that plaintiff had thereby been paid $ 5.33 more than was justly owing to plaintiff, and defendant prayed judgment for the said sum of $ 5.33 and his costs. Trial was had in the circuit court before the court and a jury, resulting simply in a verdict for defendant in the sum of $ 5.33. Judgment was entered accordingly, and after an unsuccessful motion for a new trial, and preserving exception to the overruling thereof, plaintiff has appealed to this court
The testimony on behalf of plaintiff established the correctness of the account sued upon, and went to show that the balance claimed by plaintiff had not been paid. There was positive testimony that the plaintiff never at any time authorized its traveling salesman, one Talbot, to accept the note in question, in lieu of cash payment, and that plaintiff had never received the note, and had never heard of the transaction. It appeared that the salesman, Talbot, had left plaintiff's employ some months prior to the institution of the suit.
The defendant, in his own behalf, testified that he dealt solely with Talbot, plaintiff's salesman; that upon the occasion in question Talbot wanted to sell him a bill of goods, but that defendant said that he wanted to settle for what he had bought, before purchasing anything more. That defendant finally told Talbot, however, that he had a note, and that, if this were taken and credited on his account, he would buy some more goods; that Talbot agreed to do this and further goods were ordered, and credit given defendant for $ 150, the amount of the note. Defendant testified that Talbot collected accounts due plaintiff, and that he supposed that Talbot had authority to take notes and give credit for them, as he was transacting plaintiff's business.
Other testimony for defendant showed that plaintiff's said salesman had, upon maturity of the note in question, brought suit upon it in defendant's name, secured judgment for the amount thereof, and that, upon execution, sixty dollars had been collected on the judgment. One Grover Bowles testified, on behalf of defendant, that some time prior to the trial of the cause in the circuit court, he had had a conversation with Talbot in regard to the note which the latter had taken from defendant; that Talbot told the witness that he (Talbot) had kept the note personally and had paid the plaintiff the face value thereof. The testimony as to this...
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