Stevens Davis Co. v. Sid's Petroleum Corporation
| Decision Date | 06 January 1942 |
| Docket Number | No. 25944.,25944. |
| Citation | 157 S.W.2d 246 |
| Parties | STEVENS DAVIS CO. v. SID'S PETROLEUM CORPORATION. |
| Court | Missouri Court of Appeals |
Appeal from St. Louis Circuit Court; F. E. Williams, Judge.
"Not to be reported in State Reports."
Action by the Stevens Davis Company, a corporation, against Sid's Petroleum Corporation for the contract price of a subscription for a service station sales builder. Judgment for plaintiff, and defendant appeals.
Reversed.
Dubinsky & Duggan and Edward A. Dubinsky, all of St. Louis, for appellant.
Sam M. Degen, Joseph Hoffman, and Morris M. Rosenthal, all of St. Louis, for respondent.
SUTTON, Commissioner.
This is an action to recover the contract price for a subscription of seventy-eight weeks for a service station sales builder. The action was commenced in a justice court, whence it went on appeal to the circuit court. Upon a trial anew in the circuit court, with a jury, there was a verdict in favor of plaintiff, and judgment was given accordingly. Defendant appeals.
The action is founded on the following subscription contract:
Error is assigned by defendant here for the refusal of its instruction in the nature of a demurrer to the evidence. The assignment is put on the ground that there is no evidence in the record to establish the agency of Irven Dubinsky, nor his authority to act for defendant.
Dudley Fitts, a witness for plaintiff, testified that he resided in Chicago, Illinois, and was employed as a sales representative for plaintiff; that he called upon Irven Dubinsky and obtained the contract bearing his signature, and sent the contract to plaintiff for its approval; that he told Irven Dubinsky that the Service Station Sales Builder program was designed for the use of service stations whose managers desire to increase their patronage through an efficient and effective manner of presenting their service to prospective users; that he explained to him what value it would be to his business, and recommended its use to him.
Harvey L. Lynn, a witness for plaintiff, testified that he resided in Chicago, and was employed as comptroller of plaintiff; that his duties were to supervise all the books of entry, to accept and reject orders, to approve them for credit if acceptable, to supervise all clerical work and all correspondence between plaintiff and its customers; that he entered the subscription contract obtained by Dudley Fitts in the order register after determining the credit standing of the defendant, prepared the necessary billing and shipping record, and sent a letter of acknowledgment to defendant addressed to 7248 Rosebury; that he ordered the production department to emboss portfolios with the name of Sid's Petroleum Corporation, and instructed the editorial department to prepare a full program of the Service Station Sales Builder; that shipments were made to defendant at 7248 Rosebury and by reason of defendant's continued refusal to accept these shipments he ordered shipments stopped; that the shipments were made to the home address of Irven Dubinsky; that the Service Station Sales Builder was a sales promotion plan based upon a co-operative idea invoking the extraction of the best sales ideas and practices gathered from thousands of answers sent by attendants of service stations; that from time to time supplementary ideas are forwarded to the subscribers to assist in obtaining maximum results from sales programs; that the service is based on selling principles formulated from long experience and especially adaptable for use in the promotion of service station business.
The evidence for the defendant shows that Fred Dubinsky was the president of the defendant; that defendant did not operate any service stations, but was engaged in the gasoline jobbing business exclusively; that Irven Dubinsky was twenty-three years old and was in business for himself, operating a service station at DeBaliviere and Waterman Avenue, in St. Louis; that Sidney Dubinsky operated for his own account two service stations; that defendant sold gasoline to Sidney and Irven, who are his sons, on the same basis as any other customer; that the offices of defendant were located at 3400 South Kingshighway, and that all the business of defendant was transacted from that address; that Fred Dubinsky was the only person authorized to make contracts for defendant and was the only person authorized to sign checks against its checking account; that his sons had nothing to do with the operation of the office, business, or advertising; that Irven Dubinsky was vice president of defendant, and Sidney Dubinsky was secretary-treasurer; that defendant supplied stations with gasoline; that Irven Dubinsky gave all his time to the station owned by him at Waterman and DeBaliviere; that he was never authorized to sign any contracts for defendant; that Fred Dubinsky founded the business of defendant and organized the corporation in 1922, and was always in full charge of its operation; that defendant owned the leases on...
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