State ex rel. R.E. Funsten Co. v. Becker

• Decision Date: 07 December 1927
• Docket Number: No. 27465.,27465.
• Citation: 1 S.W.2d 103
• Parties: THE STATE EX REL. R.E. FUNSTEN COMPANY v. WILLIAM D. BECKER ET AL., Judges of St. Louis Court of Appeals.
• Court: Missouri Supreme Court

1 S.W.2d 103

THE STATE EX REL. R.E. FUNSTEN COMPANY v. WILLIAM D. BECKER ET AL., Judges of St. Louis Court of Appeals.

No. 27465.

Supreme Court of Missouri. Division No. 1.

December 7, 1927.

Certiorari.

RECORD QUASHED.

M.N. Sale for relator.

(1) Instruction 3 directs the jury to find for the plaintiff, if R.F. Funsten inspected and accepted the fourteen-ounce cartons, without requiring a finding that he was authorized to accept the cartons. The ruling of the Court of Appeals, that the instruction was not erroneous, was, therefore, in conflict with the following decisions of this court, holding that an instruction, which purports to cover the entire case and to authorize a verdict, must require the finding of all essential facts. State v. Helton, 234 Mo. 559; Dameson v. Hamilton, 264 Mo. 103; Dunsmore v. Hartmann, 256 S.W. 1034; Cassin v. Lusk, 277 Mo. 673; State ex rel. v. Ellison, 272 Mo. 571. The question is presented on the face of the opinion of the Court of Appeals, since it arises on the face of the instruction, and that opinion shows that the instruction was attacked as erroneous; and the question must now be considered by this court for the further reason that it was necessarily involved in the decision of the case by the Court of Appeals. State ex rel. v. Cox, 276 S.W. 870. (2) Instruction 3 submitted to the jury the issue whether R.F. Funsten was authorized and directed to inspect the cartons, and there was no evidence of that authority. Consequently, the opinion of the Court of Appeals is in conflict with the following mentioned decisions of this court, holding that an instruction, which lacks the support of evidence, is erroneous. Champion Coated Paper Co. v. Shilkee, 237 S.W. 109; Karte v. Mfg. Co., 247 S.W. 417; Arkla Lumber Co. v. Lumber & Mfg. Co., 252 S.W. 961. (3) The opinion of the Court of Appeals substituted other issues for those upon which Instruction 3 was predicated, and then upheld the instruction on the ground that there was evidence of the substituted issues; nor were the substituted issues raised in the trial court. Consequently, the opinion is in conflict with the following decisions of this court, holding that a cause must be determined, on appeal, on the theory upon which it was tried: In re Guardianship of McMenamy, 307 Mo. 98; Hayes v. Kansas City, 294 Mo. 655; Osagera v. Schaaf, 293 Mo. 333; Engel v. Worth County, 278 Mo. 295; Degonia v. Railway Co., 224 Mo. 588. The opinion is also in conflict with the decisions of this court holding that appellate courts should not invade the province of the jury. Missouri Coal Co. v. Coal Co., 235 S.W. 123; Degonia v. Railroad, 224 Mo. 589. (4) The ruling of the Court of Appeals, that the declarations and acts of R.F. Funsten warranted the finding by the jury that he possessed ostensible authority to inspect and accept the cartons, is in conflict with the following decisions of this court, holding that an agency cannot be established solely by the declarations and acts of the alleged agent. Carp v. Ins. Co., 203 Mo. 295, 334; Salmon Falls Bank v. Leyser, 116 Mo. 51; Waverly Co. v. Cooperage Co., 112 Mo. 383, 389.

Gustave A. Stamm for respondents.

(1) In a proceeding by certiorari, the Supreme Court is limited, under the Constitution and laws of Missouri, to a determination as to whether the opinion sought to be quashed promulgates a rule of law which is in conflict with a former ruling of the Supreme Court on the same or similar facts. State ex rel. Winters v. Trimble, 290 S.W. 117; State ex rel. Travelers Ins. Co. v. Daues, 285 S.W. 480; State ex rel. Cox v. Trimble, 312 Mo. 322; State ex rel. Vogt v. Reynolds, 295 Mo. 375. (2) The Supreme Court is, under the Constitution and laws of this State, without power to overturn a ruling of the Court of Appeals, even when erroneous, unless it is in conflict with some previous ruling of the Supreme Court on the same or similar facts. State ex rel. Bradley v. Trimble, 289 S.W. 924; State ex rel. Koenen v. Daues, 288 S.W. 14. (3) In a proceeding by certiorari the Court of Appeals is conclusively presumed to have correctly stated the facts, and the Supreme Court is without jurisdiction to inquire into the correctness of those findings of fact. State ex rel. Am. C. & Fdy. Co. v. Daues, 282 S.W. 392; State ex rel. Wahl v. Reynolds, 272 Mo. 588; State ex rel. United Rys. Co. v. Reynolds, 257 Mo. 19; State ex rel. Mary Iba v. Ellison, 256 Mo. 644.

ATWOOD, J.

This is a proceeding by certiorari to quash the opinion and record of the St. Louis Court of Appeals in the case of Universal Paper Products Company, a corporation, v. R.E. Funsten Company, a corporation.

From respondents' opinion it appears that the suit was based upon a written contract dated April 23, 1921, by which plaintiff agreed to make 50,000 fourteen-ounce paper cartons to be embossed and printed in colors and used in packing stuffed dates. They were to be shipped from plaintiff's factory in Clyde, Ohio, to defendant at St. Louis, Missouri, within sixty days, but time of delivery having been waived by defendant it is not an issue in the case. The cartons were delivered about five months after date of contract, and were rejected by defendant on the ground that they did not comply with the contract. Whether or not they did comply was the real issue in the case.

It appears that for many years defendant had been purchasing cartons of this kind from another company in New York, but plaintiff, through its representative, solicited this order from defendant. Plaintiff was furnished by defendant with samples, and throughout all the correspondence between the parties it was insisted that the cartons to be furnished by plaintiff should be as near like the sample furnished by defendant as possible. However, plaintiff failed to furnish defendant with proof of the final and finished carton after the embossing had been completed, and when shipment of the 50,000 fourteen-ounce cartons was received September 27, 1921, defendant advised plaintiff that it could not use them because they were not in accordance with the contract. Defendant's evidence disclosed that it was compelled to go out and purchase 50,000 fourteen-ounce cartons elsewhere and pay a greater price, for which it claimed damages by way of counterclaim. The verdict was in favor of plaintiff for $1150 with interest, and also in favor of plaintiff on defendant's counterclaim.

The opinion discloses that on or about September 13, 1921, plaintiff shipped 1200 of the fourteen-ounce cartons to defendant at St. Louis. This shipment was made by express, and reached St. Louis about the 15th or 16th of the same month. About September 20, 1921, defendant sent one of its stockholders, who was a salesman for the company, a Mr. R.F. Funsten, to plaintiff's factory at Clyde, Ohio. Relative to this visit respondents' opinion reads in part as follows:

"The object and purpose of R.F. Funsten's visit to plaintiff's factory is in dispute. Defendant contends that it sent him to the plaintiff's factory for the purpose of ascertaining why a certain shipment of four-ounce cartons has not been made, which shipment plaintiff had been promising to make for several weeks prior to that date. The plaintiff's contention is that this Mr. Funsten was the general agent of the defendant, and inspected the fourteen-ounce cartons as well as the four-ounce; that he spent something like two or three hours at the factory, examined a portion of each kind of the cartons, and requested that they be shipped at once, and that therefore defendant is bound by his action."

It further appears that defendant was a family corporation, and R.F. Funsten testified that his brother called him over the telephone and directed him to go to plaintiff's place of business at Clyde, Ohio, and make inquiry concerning the shipment of the four-ounce cartons; that he stayed at the factory probably two hours and went through the factory and saw a part of the fourteen-ounce cartons; that he knew that plaintiff was going to load them that day, and that they were loading fourteen-ounce cartons into the car, and that he told plaintiff's representative, Mr. Leach, that he wanted to get the four-ounce cartons shipped as quickly as possible; that he went there to get delivery of the four-ounce cartons, but that he knew they were shipping the whole 50,000.

Mr. Leach testified for the plaintiff that R.F. Funsten came to his office on the date above mentioned and stated that he had been authorized by his firm to come and see what could be done toward hastening the delivery of the carload of cartons that was yet to be shipped. He says the fourteen-ounce cartons had...