Silvey v. Herndon
| Decision Date | 16 November 1950 |
| Docket Number | No. 6955,6955 |
| Citation | 234 S.W.2d 335 |
| Parties | SILVEY v. HERNDON. |
| Court | Missouri Court of Appeals |
Rogers & Rogers, Gainesville, for appellant.
J. Bernie Lewis, Ava, for respondent.
This is a suit on an account. From a judgment in favor of plaintiff in the sum of $965.20, defendant appeals.
Plaintiff was engaged in the feed business at Ava, Missouri and defendant was one of his customers, living out in the country some eleven miles. Plaintiff sold shorts, chicken feed, hog fattening, egg mash, crushed corn and feed, and bought eggs and produce. The period for which the account was alleged to have run was from July 18, 1947 until May 15, 1948. Plaintiff's evidence showed that defendant and her son would come into his place of business and buy shorts, pulverized corn, salt and other kinds of stock feed, which, on many occasions plaintiff, in person, or by his employees would deliver to her farm and place in her barn. Plaintiff's system of bookkeeping was very simple. At the time a purchase was made, an invoice was made with a carbon copy. This invoice showed the date, the purchaser, the articles sold and the price. The copy was on yellow paper and was given to the customer or laid down on the desk where the customer could get it. The original was kept by the merchant until the goods sold were paid for and was then delivered to the customer. Partial payments on account were recorded in the same manner. Testimony was introduced, without objection, to show that this was the customary method of keeping feed store accounts in that community. The various items of the account were introduced in evidence by the plaintiff, each showing the date of the purchase, the kind of feed purchased and the price. The total amount from July 18th to December 30, 1947, inclusive, was $671. The amount sold in 1948 was $703.20, making a total of $1374.20. Plaintiff was given credit for payments beginning July 25, 1947 and ending May 11, 1948 of a total of $409. Of this sum $190 was for 1947. These deliveries to her farm were made at defendant's request. Sometimes the feed would be ordered by the defendant, sometimes by her son, at other times both would be present, but all the times it was delivered to her farm and stored in her barn. There were two accounts, the one in question and one for 'Dairy feed,' which was kept paid up upon receipt of the 'milk checks.' Defendant's son's name was John Nokes and relative to John's agency for the purchase of feed, plaintiff testified on cross examination:
'
Wilbur K. Klineline, an employee driver for plaintiff during 1947, testified:
Lawrence Tate, another driver for plaintiff in 1948 testified:
* * *
'
Plaintiff testified, when shown a check for $20 marked, 'In full for all feed.'
'
Defendant's answer to plaintiff's petition was a general denial. Her testimony was that on December 30, 1947, she went to the store of the plaintiff and told him she wanted to pay the balance of her account. He told her the balance due was $20 and she paid it. At the trial she produced a check in the handwriting of her daughter-in-law for the sum of $20 and the check bore a notation, 'Payment in full for all feed.' This check was introduced in evidence. When asked on cross examination if there had been an erasure on the check, defendant said: 'No, sir, you can go over to the bank and get the photostatic copy of it.'
Defendant then offered as a witness O. C. Reynolds, cashier of the Bank of Ava, in which this check had been deposited by plaintiff. Mr. Reynolds testified he had a machine in his bank that photographed all checks on out of town banks and that a picture of this particular check had been taken on January 10, 1948. It was on an out of town bank, having been written on the Farmers and Merchants Bank in Springfield. Mr. Reynolds first stated that the check had on it the notation 'Paid in full for dairy feed'. He then corrected this statement and said the notation showed 'For all feed'. On cross examination, he also said the picture at the bank was exactly like the check that was presented to him for examination and it stated 'Paid in full for all feed.' Some question was raised as to whether there had been an erasure on the check after it had passed into his bank and was photographed, and, at the suggestion of plaintiff's counsel and with the acquiescence of the court, witness Reynolds took the sheriff over to the bank and together they viewed the picture of the check and they discovered that while the check bore the notation 'Paid in full for all feeds' the photograph showed 'Paid in full for dairy feed.' The testimony further showed that the check, after its release by the bank upon which it was drawn, had been in the possession of the defendant.
Defendant further testified that she had never authorized her son, John Nokes, to make any purchases for her at all in 1948 and he testified to the same effect. He further stated that he had made purchases for himself during 1948 but that he always paid for them when he received his milk check and that he did not owe the plaintiff anything.
Mrs. Maxine Nokes, the wife of defendant's son, testified that she wrote the $20 check and that defendant made a notation on it, 'Paid in full for all feed.' That defendant, at the time, told plaintiff she wanted to pay her account. She denied that she had anything charged to defendant's account and that whatever she and her husband bought was paid for out of the milk check. She testified positively that the day the check was written and given to plaintiff that it bore the notation 'Paid in full for all feed.'
Defendant testified that the reason she paid her account in full in December, 1947, was that she intended to go to California to visit her son, who, it appears, was returning from China. She was gone about 5 weeks. The record shows that no objection was made when the court sent the banker and the sheriff over to the bank to examine the photograph and no objection was made when they came into court and testified as to what the photograph showed.
Three grounds of error are assigned on the part of appellant. They are: 1. There is no evidence in the record showing defendant bought any merchandise from plaintiff in 1948 or that anyone bought such merchandise for her. 2. The court committed error in instructing upon the theory of agency because there was no evidence of such. 3. Previous to the trial, witness Reynolds had examined the picture of the check and told the defendant and her attorney it showed the notation 'all feed', that they relied upon that statement and that during the trial, witness again testified to that state of facts but that after the inspection of the photograph under order of the court, to defendant's surprise, he then testified that it showed the notation 'all dairy feed.' Appellant urges, 'this was a mistake on the part of the witness, O. C. Reynolds, prejudicial to the rights of defendant and the court should have granted a new trial because of it.'
This cause was tried to a jury. In determining whether plaintiff has made a submissible case for the jury, this court must consider the whole evidence whether offered by the plaintiff or the defendant, and plaintiff must be given the benefit of any and all facts and circumstances favorable to or tending to support plaintiff's theory of the case and every reasonable inference deducible therefrom, while evidence on the part of the defendant, which is contradictory to plaintiff's evidence or contradictory to any evidence favorable to plaintiff must be excluded. Wilhelm v. R.S. Buchanan Co., Mo.App., 131 S.W.2d 894. Kelley v. Absher, Mo.App., 210 S.W.2d 531. Persten v. Chesney, Mo.App., 212 S.W.2d 469. Parrish v. Herron, Mo.App., 225 S.W.2d 391.
In view of this rule of law, there was sufficient evidence to submit to the jury the question whether defendant had an account with plaintiff, extending from July 18, 1947 to May 15, 1948. Plaintiff was operating a feed store. Defendant was one of his customers. She began buying feed from him in July, 1947, much of it was delivered to her at her home and stored in her barn, by plaintiff's truck driver in 1947, and by himself and another truck driver in 1948. She would come in and order it, sometimes alone, sometimes in company with her son, at other times he would be alone when it was ordered, but all the time it was delivered to her farm and put in her barn. Though her son was living with her on her farm during the entire time of this account, she owned the stock thereon. Plaintiff says that she told him to charge her with merchandise purchased by her son. At the close of 1947, he had sold and delivered to her $671 worth of feed, during the same period she had paid him $190 for which he had given her...
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