Sumner v. Saunders

• Citation: 51 Mo. 89
• Parties: A. SUMNER, Appellant, v. JAMES SAUNDERS, Respondent.
• Decision Date: 31 October 1872
• Court: United States State Supreme Court of Missouri

51 Mo. 89

A. SUMNER, Appellant,

v.JAMES SAUNDERS, Respondent.

Supreme Court of Missouri.

October Term, 1872.

Appeal from Shelby Circuit Court.

Geo. Denison, for appellant.

Lipscomb & Hale, for respondent.

ADAMS, Judge, delivered the opinion of the court.

Plaintiff sued on a note executed by defendant, October 20, 1869, due six months after date, and payable to the order of plaintiff.

Defendant, in his answer, admits the execution of the note, but states that on the 22d of March, 1870 (which was before the note was due), he (defendant) paid plaintiff, through his (plaintiff's) agent, Alexander Schriver, the sum of $50, in part discharge of the note, and sets up tender of the balance, $38.70, and bring it into court subject to its order and control.

Plaintiff, in his reply, denies that defendant paid the $50, as alleged, in part discharge of the note, and denies that Alexander Schriver was plaintiff's agent for the collection of the note.

On the trial the defendant was introduced as a witness on his own behalf, and offered to prove what transpired at the time the note was given, to which plaintiff objected, but the court allowed him to testify, and the plaintiff excepted. He then testified as follows: “I gave the note to Alexander Schriver, who claimed to be agent for A. Sumner, for a sewing machine, and afterwards I paid Schriver fifty dollars. When he took the note he said I could pay it at any time to Mr. Miller, by going to the express office at Shelbina, or to himself. There was an understanding that I could pay it at any time. I only wanted three months' time on the note, but he gave me six months' time. The name of A. Sumner was on the machine. It was brought to my house in a wagon. A. Sumner's name was on the sides of the wagon. At the time I bought the machine Schriver gave me a printed card, which card contained the following words and figures printed thereon: ‘Alexander Schriver is our agent for Shelby county, Mo., and will sell Wheeler & Wilson's sewing machines at the following prices: No. 1, silver-plated on half case, walnut or mahogany, $95.00; No. 2, bronzed ditto, $85.00; No. 2, bronzed, on plain table, $75.00. We allow no deviation from these prices. Customers will find it greatly to their advantage to purchase direct from the agent, as the machine will be delivered at their homes and instructions given in the use, free of charge. Letters addressed to Alexander Schriver, Shelbyville, Mo., will receive prompt attention. A. Sumner.” On the reverse side of this card is given a price list of A. Sumner's seven-octave piano-fortes, with the name of A. Sumner printed thus: “A. Sumner, St. Louis, 415 N. Fifth street.” The said card was read in evidence against the objections of the plaintiff.

The witness further testified: “At the time I paid Schriver the $50, he gave me a paper [paper shown to witness]; that is the paper. Schriver wrote his name to it and gave it to me for the money I paid him.” This paper was read against the objections of plaintiff, and reads as follows: “$50. Shelbina, Mo., March 22, 1870. Received for A. Sumner, from James Saunders, cash $50, note $35, for one Wheeler & Wilson sewing machine, style 2 h. c., number 366, 299. Alex. Schriver, agent. Bill of sale, with warranty, will be issued by A. Sumner, 415 N. Fifth street, St. Louis.” A large part of this paper was printed, especially the name of A. Sumner, where it appears, and on the back is a list of A. Sumner's piano-fortes, which it is unnecessary to set out here.

On cross-examination witness testified: “I lived near Lakeman when I bought the machine, and when I paid the $50 to Schriver; my wife paid Schriver the fifty dollars. I was away from home when Schriver first came, but I think I got home before the money was paid. I was to pay it any time I got the money; Schriver did not have the note; I did not know where it was. The note was not due when I paid the $50. I never saw A. Sumner. I only know Schriver was Sumner's agent by what Schriver told me and others have said. James Vandevor told me Sumner wrote to him that Schriver was his agent, but not authorized to throw in extras with machines.”

This was all the testimony offered in chief by defendant.

The plaintiff then asked the court to instruct the jury to the effect that, admitting the testimony given on behalf of the defendant to be true, he...