Swift & Co. v. Madden, 4784.
| Decision Date | 15 January 1931 |
| Docket Number | No. 4784.,4784. |
| Citation | 35 S.W.2d 59 |
| Parties | SWIFT & CO. v. MADDEN et al. |
| Court | Missouri Court of Appeals |
Appeal from Circuit Court, Jasper County; Harvey Davis, Judge.
"Not to be officially published."
Action by Swift & Company against A. H. Madden and others. Judgment for plaintiff, and defendants appeal.
Affirmed.
J. M. Tatum, of Anderson, and Foulke & Foulke, of Joplin, for appellants.
Hubbert & Rice, of Neosho, for respondent.
This is an action on account. The pleadings are not in any manner set out in the abstract of the record. In appellants' statement of facts it is said that their answer pleaded a novation and the reply was a general denial. The trial was to the court, without a jury, resulting in a judgment for plaintiff, from which judgment defendants have appealed.
It is urged that the trial court erred in finding there was not sufficient evidence to constitute a novation. The court having found for plaintiff, it is incumbent upon this court to give weight to plaintiff's evidence and accept it as true, rather than the evidence of defendants on disputed points. It also appears that the trial court made a voluntary finding of facts in this case and declared there was insufficient evidence to prove a novation. This finding will not be disturbed on appeal unless the evidence conclusively shows to the contrary. Miller v. Halleran, 219 Mo. App. 195, 270 S. W. 427, 429.
The facts may be briefly considered. Defendant A. H. Madden testified that he was engaged in the retail meat business at Vinita, Okl., until June 1, 1928; that he then traded his meat market to a Mr. Dorman; that he ordered goods of defendant at various times through their representative Ivan W. Olmstead and made payments to him; that on several occasions there would be shortages or damaged goods or overcharges, and that Mr. Olmstead always made the adjustments with him without communicating with plaintiff; that at the time he made the trade he told Dorman the accounts owed defendant would have to be taken care of; that "at that time Mr. Olmstead came in, and he introduced him to Mr. Dorman and he said to Mr. Olmstead that he was selling the business to Dorman and that Dorman would take care of the old bills; that Mr. Olmstead said that would be all right and took an order from Mr. Dorman for more meat and received a check from him for $100.00 for the invoices that were due that day on the old account." There was no...
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