The Jones Store Co. v. Kelly

• Decision Date: 02 March 1931
• Docket Number: No. 17116.,17116.
• Citation: 36 S.W.2d 681
• Parties: THE JONES STORE COMPANY, RESPONDENT, v. G.J. KELLY ET AL., APPELLANTS.
• Court: Missouri Court of Appeals

36 S.W.2d 681

THE JONES STORE COMPANY, RESPONDENT, v. G.J. KELLY ET AL., APPELLANTS.

No. 17116.

Kansas City Court of Appeals. Missouri.

March 2, 1931.

Appeal from the Circuit Court of Jackson County. — Hon. Paul Buzard, Special Judge.

REVERSED AND REMANDED.

James B. Nourse for respondent.

Carl G. Wagner for appellant.

CAMPBELL, C.

This is an action to recover upon an account for merchandise alleged to have been sold by the plaintiff to the defendants. There was no service upon Mrs. C.J. Kelly and plaintiff dismissed as to her. Plaintiff obtained a verdict and judgment against G.J. Kelly, hereinafter called the defendant, in the sum of $185.25. Defendant has appealed.

The plaintiff's evidence tends to show that it conducted a retail mercantile store; that on September 27, 1927, the defendant made a written application to plaintiff for credit; that the application was approved and a coin numbered 69990 delivered to defendant; that it was understood defendant could allow another to use the coin in making purchases, the amount of which would be charged to his account; that defendant gave a receipt for the coin, stating therein that if the same was lost he would promptly notify plaintiff; that on that day defendant purchased merchandise to the amount of $75.60 which was charged to his account, and in October following made another purchase on credit in the sum of $12.85; that the account was paid by defendant about two months later; that the first item of the account in suit is dated February 29, 1928, and the last item is dated April 2, 1928.

There is no evidence showing that plaintiff sold any of the merchandise to the defendant or any other person save and except the recitations appearing in its record, and the statement of the defendant in relation thereto. That record consists of sale slips and a ledger account. The slips show in some instances the purchaser was Mrs. Kelly and in other instances, Mrs. G.J. Kelly, and that the coin, with one exception, was produced at the time of each purchase; that the merchandise purchased without the coin being produced was delivered at defendant's home; that plaintiff knew defendant was unmarried; that defendant, in response to a demand for payment, went to its store and stated to its comptroller of accounts that he had not personally made the purchase, "but he said that they were made by a housekeeper, I believe, or some one living in his house, and he told me to not allow any further credit on his account;" that he was negotiating a loan and would pay the account in thirty days; that when a coin is presented by one seeking to purchase, the clerk to whom it is presented will telephone to the comptroller the name, address, and coin number, and if the coin number checks properly it is "O.K.'d. or passed."

The defendant testified he made the application for credit and received the coin as stated in plaintiff's evidence; that he took the coin home, "put it in the bureau and locked it up;" that he never saw it thereafter; that after payment of the account was demanded he searched for but did not find it; that he did not notify plaintiff of its loss; that at the time he received the coin it was agreed the amount of credit was limited to fifty dollars and that no other person could use the coin; that after December, 1927, he did not have a housekeeper; that no one had authority to make purchases on his credit; that he did not make the statements attributed to him to the effect that his housekeeper made the purchases and he would pay the account; that his house was "ramsacked" in February, the inference being that the coin was taken at that time.

The defendant insists the court should have granted his request for a directed verdict. We think not. While it is true plaintiff made an affirmative showing that the merchandise, except one item, was bought by some person other than defendant, it also showed that that person produced the coin which defendant had received, and that defendant had agreed in event of the loss of the coin he would...