Schollay v. Moffitt-West Drug Co.

• Decision Date: 13 May 1901
• Citation: 67 P. 182,17 Colo.App. 126
• Parties: SCHOLLAY v. MOFFITT-WEST DRUG CO. [1]
• Court: Colorado Court of Appeals

67 P. 182

17 Colo.App. 126

SCHOLLAY v. MOFFITT-WEST DRUG CO. ^[1]

Court of Appeals of Colorado

May 13, 1901

Appeal from district court, Arapahoe county.

Action by the Moffitt-West Drug Company against E. Pauline Schollay née E. Pauline Lyneman. Judgment for plaintiff, and defendant appeals. Reversed.

R.D. Thompson, for appellant.

Thomas B. Stuart and Charles A. Murray, for appellee.

THOMSON, J.

The Moffitt-West Drug Company brought this action against E Pauline Lyneman to recover the price of goods, wares, and merchandise alleged to have been sold and delivered by it to her. The answer was a denial. Judgment went in favor of the defendant, and the plaintiff appealed to this court, where the judgment was reversed. Drug Co. v. Lyneman, 10 Colo.App 249, 50 P. 736. The trial which followed the reversal resulted in a judgment for the plaintiff, and the case is now here by the defendant's appeal.

Upon some matters of controlling importance the evidence was conflicting, and, if the case was properly submitted to the jury, we are powerless to disturb their verdict. It appears that the defendant was the proprietor of a drug store known as "Lyneman's Pharmacy," which was managed by her husband, F.A. Lyneman, as her agent. Her testimony was that on a day in July, 1893, happening to go to her store she found in the room Mr. John J. Smythe, the traveling salesman of the plaintiff, endeavoring to obtain an order from her husband for a bill of goods; that she then and there told him that she wanted him to keep out of the store; that she did not want her husband to buy any goods East, because she could not keep track of the purchases; that she wanted her goods bought in Denver, from two houses, which she named for the reason that she knew just what goods were needed, and what should be bought; and if her husband bought at those houses, she could keep herself advised of his movements. It appears from her statements that she had very little confidence in her husband's business capacity, and disliked his methods; and hence her anxiety to be able to follow his transactions. The goods, for the price of which this action was brought, were all sold to the pharmacy after the defendant, according to her testimony, notified Mr. Smythe that she wanted no goods from his house. She also stated that she had no knowledge that any goods from that house had come into her store, and we find no tangible evidence in the record that she ever knew anything whatever about any of such goods, except it might be one barrel of whisky. Concerning that she denied knowledge that it came from the plaintiff, but her denial was contradicted. Mr. Lyneman died on the 19th day of June, 1894, and the defendant, after the first trial, became Mrs. E. Pauline Schollay. The evidence on the subject is unsatisfactory, but it may be conceded that, with the exception of the whisky, all the goods received from the plaintiff were placed upon the shelves in the storeroom, and, in due course of business, were sold with the other goods. The defendant's statement of the conversation with Mr. Smythe was contradicted by him.

Upon the evidence the court instructed the jury orally as follows "If you believe from the evidence that the plaintiff sold and delivered to the Lyneman Pharmacy, and you find that the defendant was the principal and owner of the business carried on and conducted in the name of the Lyneman Pharmacy, and that the defendant was doing business in such name, and you find that the merchandise was delivered at the premises, and in the store of the defendant, and that the defendant personally or through her agent received such goods, and disposed of them for her own benefit, and appropriated the proceeds thereof to her own use, then the defendant is liable in this action, and you should return a verdict in favor of the plaintiff for the value of the goods so sold, so delivered, and so received and so appropriated by the defendant. And under such facts the plaintiff would be entitled to recover whether the defendant had or had not knowledge of what the agent did, and whether there may or may not have been a limitation on the agent's authority. In order to justify you in finding for the plaintiff, you must find from a preponderance of the evidence that the goods and merchandise in question were sold and delivered to the Lyneman Pharmacy. And if you find from the evidence that a certain bill of merchandise and goods was, in the manner as we have described, sold and delivered to the said pharmacy, and that the defendant was the owner of the business, and carrying on her business in that name, and you further find from the evidence that the defendant personally or through her agent disposed of any part of the said bill of goods and merchandise, and appropriated the proceeds thereof to her own use, and you find from the evidence, under these instructions, that the defendant is liable for such portion of the bill of goods, then and in that case the defendant would be liable for the entire bill of goods to the extent of the items and amount of the entire bill of goods which were sold and received at her place of business; provided you find that such entire bill of goods was sold and received by the defendant, either personally or through her agent, and that the same were placed in the store, and mingled with the goods and merchandise of the premises and store of which the defendant was the principal and owner, and you find that such goods were sold and disposed of by either the defendant personally or her agent, and the proceeds thereof went into the funds of the defendant, and were retained by her. If you find from the evidence that the plaintiff did not sell the merchandise in question to the Lyneman Pharmacy, and deliver the same to the Lyneman Pharmacy, and that the same, nor any part thereof, were appropriated, and the proceeds thereof not appropriated, by the defendant personally or through her agent, and that the proceeds thereof did not go into and become mingled with the funds of the defendant, and that the defendant did not retain the same, then and in that case you should find for the defendant with reference to the entire bill of goods. In determining these questions, you should take into consideration all of the evidence that has been offered in the case, and from and upon that evidence return your verdict. It has been contended on the part of the defendant, that the defendant instructed one Smythe, who it is said was a salesman for the plaintiff company, upon a certain occasion, in the defendant's store, that her husband, Lyneman, was forbidden to purchase goods from any house other than two certain houses named, in the city of Denver, inclusive of the house which Smythe represented; and it is contended that she told Smythe that she would not permit Mr. Lyneman to purchase any goods at his house, and evidence has been offered in reference to such contention. If you find that the defendant did, on that occasion, notify the salesman, and you find that salesman to be the person who subsequently sold the goods to the agent of the defendant, and you find that the goods in question were sold to such agent, Lyneman, the husband, and were not sold to the Lyneman Pharmacy, of which the defendant was owner or principal, and you find that the defendant, either personally or through her agent, did not receive the said bill of goods, or any part thereof, and did not mingle them with the other goods in her store, and did not, through herself personally or through her agent, appropriate the same, or any part thereof, by selling and disposing of them, and by appropriating the proceeds thereof to her own use, then and in that case the defendant would not be liable for any part of the bill of goods alleged to have been sold to the Lyneman Pharmacy, the defendant in this case. The law is that, though the defendant may have limited the power and authority of her agent in purchasing goods, though she may have notified the plaintiffs in this case, through their agent, Smythe, of such limitation, if she subsequently ratified the act of Lyneman, her husband, in purchasing the bill of goods in whole or in part, she would then become liable for the bill of goods in question. And after having limited the power and authority of her agent, by notice to the plaintiff, through its agent, Smythe, if such he was, if Lyneman subsequently purchased the bill of goods (I mean Lyneman, the husband), and placed them in her store, and she appropriated the goods, or any part thereof, either personally or through her agent, by mingling them with her goods, and selling the same, and appropriating and retaining the proceeds thereof, such would be in law a ratification of the acts of her agent, even though he had theretofore been limited in his power or authority to bind the principal, the defendant. And the law is that a person cannot ratify a part of a contract without becoming liable for the entire contract; and under these instructions you will determine from the evidence under the law whether the plaintiff is entitled to a verdict in this case, and, if so, determine the amount that the plaintiff is entitled to recover, and by the same rule determine whether or not the defendant is entitled to a verdict." The court refused a number of instructions requested by the defendant; but, because they were not prepared or presented in accordance with the requirements of the law, the court was authorized to reject them, and its action in that regard cannot be reviewed by us. The oral charge was met by one general exception on the part of the defendant, and it is urged upon us that this was insufficient. If the...