Sidney Weber, Inc. v. Interstate Motor Freight System

• Decision Date: 21 October 1947
• Docket Number: No. 27214.,27214.
• Citation: 205 S.W.2d 291
• Parties: SIDNEY WEBER, Inc. v. INTERSTATE MOTOR FREIGHT SYSTEM et al.
• Court: Missouri Court of Appeals

205 S.W.2d 291

SIDNEY WEBER, Inc. v. INTERSTATE MOTOR FREIGHT SYSTEM et al.

No. 27214.

St. Louis Court of Appeals. Missouri.

October 21, 1947.

Rehearing Denied November 19, 1947.

Appeal from St. Louis Circuit Court. William H. Killoren, Judge.

"Not to be reported in State Reports."

Action on an open account for materials, goods, wares and merchandise sold and labor performed by Sidney Weber, Inc., against Interstate Motor Freight System, a corporation, also known as Interstate System, wherein William Germer was joined as third party defendant. From a judgment for plaintiff, the Interstate Motor Freight System appeals.

Judgment modified, and as modified affirmed.

B. W. LaTourette and G. M. Rebman, both of St. Louis, for appellant.

Meyer Blocher, Fred S. Henderson and John F. Hanlon, all of St. Louis, for respondent.

McCULLEN, Presiding Judge.

This is an action on an open account brought by Sidney Weber, Inc., as plaintiff, against Interstate Motor Freight System, a corporation, as defendant, in which William Germer was joined as third party defendant on application of defendant Interstate Motor Freight System, hereinafter referred to as Interstate System. Issue was joined between plaintiff and Interstate System, but default and inquiry was had as to third party defendant Germer. A trial before the Circuit Court without a jury, a jury having been waived, resulted in a judgment for plaintiff against Interstate System in the sum of $1642.85, with interest in the sum of $92, making a total judgment of $1734.85. Judgment also was entered in favor of Interstate System and against third party defendant William Germer in the principal sum of $1631.66, with interest in the sum of $83.21, making a total of $1714.87, with costs. Thereafter, Interstate System duly appealed.

Plaintiff's petition alleged that, at the special instance and request of defendant Interstate System, plaintiff sold and delivered to said defendant materials, goods, wares and merchandise, and performed certain labor on various dates between the 20th of April, 1942, and the 3rd of July, 1945; that said defendant is entitled to certain credits which are set forth in the account annexed to the petition, and that there is a balance due plaintiff from said defendant amounting to $1642.65 which said defendant, although requested to pay, refused to pay, and refused to pay any part thereof.

Interstate System's amended answer denied the allegations in plaintiff's petition, and alleged that any services rendered or work performed by plaintiff was done for one William Germer and not for defendant Interstate System, and that said defendant made no agreement with plaintiff to pay the account of William Germer; that any such agreement as alleged, if made with plaintiff, not having been in writing and signed by Interstate System, is void, and that said defendant pleads the provisions of Section 3354, R.S.Mo.1939, Mo. R.S.A.

Defendant Interstate System contends that the judgment should be reversed because, the burden of proof being on plaintiff it has failed to meet that burden; that there is no evidence in the record to show a principal and agent relationship between said defendant and William Germer, and that there is no evidence to estop said defendant from denying that Germer was its agent in the transactions involved herein.

The plaintiff corporation is engaged in the business of repairing motor vehicles and maintains its place of business in the City of St. Louis, Missouri. Defendant Interstate System, also a corporation, is engaged in the transportation of freight by motor vehicles or trucks in interstate commerce as a common carrier. It maintains a place of business at 1600 North Eighth Street, which is at Eighth and Mullanphy Streets, in the City of St. Louis, Missouri, where it has its terminal. It never had a place of business at 601 South Second or Third Street. Nor did it ever do business at 3747 Washington Avenue in St. Louis, where William Germer, one of its former truck drivers, lived.

The evidence shows that since some time in the year 1944 defendant Interstate System has not owned any of the motive or power equipment for its over-the-road service, having leased all such power units from private owners. Said defendant, however, does own all of its own trailers used in over-the-road hauls, and also owns and operates, in the City of St. Louis, four tractors (power units) and three trucks for use in making deliveries in said city. Said defendant operates over an extensive territory.

Third party defendant, William Germer, formerly worked for defendant Interstate System as a driver, operating between Chicago and St. Louis, having his residence at 3747 Washington Avenue in St. Louis, Missouri. Some time in the year 1944 Germer purchased six tractor units from Interstate System and leased them to said defendant and furnished drivers therefor. Said tractors were used in over-the-road service for Interstate System. They were painted in the same colors as those used by Interstate System on its equipment, and bore the name of said Interstate System in accordance with the requirements of the regulations of the Interstate Commerce Commission. No change was made in the size or style of the lettering of Interstate System's name on said equipment.

According to Interstate System's evidence, Germer was not authorized to incur any obligations on behalf of the Interstate System, nor to pledge its credit for repair of trucks. Said evidence also shows that Interstate System issues purchase orders when it has repair work done on any equipment, but it does permit its leased operators, such as Germer, to pledge its credit for sums not exceeding $10 in the case of emergency on road breakdowns, such as tire trouble.

According to plaintiff's records introduced in evidence, plaintiff and Interstate System began their business relations about April 20, 1942, and the account started at that time was balanced between the parties on March 11, 1944. During the period between those dates the account was always paid. Said parties had no further business transactions until November 15, 1944. Plaintiff's Exhibit A, made up of three of plaintiff's ledger sheets, shows that the highest credit extended to Interstate System during the period April 20, 1942, and March 11, 1944, was $51.41. The largest single item therein was $41.38. For the period of November 15, 1944, to December 18, 1944, the largest item was $4.32, and the highest credit extended was $6.59. At the end of December, 1944, according to said Exhibit A, the amount charged against Interstate System had increased to $914.78.

William A. Kerckhoff, Secretary of plaintiff company, testified that in April, 1945, he was called by W. E. Presnell, St. Louis Terminal Manager of Interstate System, who then, for the first time, objected to the statements rendered to Interstate System, and told Kerckhoff that the account was not that of Interstate System, but was the account of one of its drivers from whom it was renting trucks and whose name was Germer.

Mr. Presnell, testifying for defendant Interstate System, said that the conversation above referred to was "some time after we got the first month's statement," and "very seldom we ever run over ten or twelve dollars a month out there at the most, but it jumped up to — I believe the first month's statement jumped up to six or seven hundred dollars, something like that * * *." After January 1, 1945, according to plaintiff's Exhibit A, the account amounted to $1078.37 by January 31, 1945, and by May 14, 1945, it amounted to $1748.27 against said defendant.

Plaintiff's witnesses Kerckhoff and Celest Brimmer testified that plaintiff company received a payment of $500 on account on February 13, 1945, and that said payment of $500 was made by defendant Interstate System by check. Two different types of checks were shown to the witnesses, but they were not able to identify the type of check which they said had been received in the $500 payment on account on February 13, 1945. They did, however, state that they were certain the check bore the name "Interstate".

Mr. Presnell, testifying for Interstate System with respect to the $500 payment above mentioned, said that he mailed a personal check of William Germer in the sum of $500 to plaintiff at Mr. Germer's request; that he did not issue any check of Interstate System in the sum of $500 at that time. He further stated that he was "absolutely positive" that it was Germer's check for $500 that he mailed. He also testified that he had no knowledge of checks issued or of checking accounts handled by Interstate System's home office in Grand Rapids, Michigan, and had no knowledge of special accounts of said defendant to which checks for $2092.64, $2050.11, and $4556.35 were issued during the month of February, 1945.

Plaintiff's evidence was to the effect that monthly statements of the account between plaintiff and defendant Interstate System were mailed by plaintiff to said defendant, commencing with the account for November, 1944.

Mr. Presnell, further testifying for Interstate System, stated that he could not recall the date when he protested against some of the charges, but that "it was after the bill had mounted up to five or six or seven hundred dollars; I don't have the faintest idea what the date was." Said witness, on cross examination, stated he did not make any written protest to plaintiff about the account when plaintiff billed it to Interstate System.

Defendant Interstate System calls attention to plaintiff's Exhibit A and points out that there was a series of nine small transactions between said parties over a period of about two years, from April 20, 1942, to March 11, 1944; that the greatest indebtedness on a single transaction during that period was $41.38, and that the average transaction was in the amount of $15.25.

Said defendant further points out that plaintiff's Exhibit A shows that the account was...