United States Wood Preserving Co. v. Granite B. Pav. Co.

• Decision Date: 07 November 1922
• Docket Number: Mo. 16441.
• Citation: 245 S.W. 349
• Parties: UNlTED STATES WOOD PRESERVING CO. v. GRANITE BITUMINOUS PAVING CO.
• Court: Missouri Court of Appeals

245 S.W. 349

UNlTED STATES WOOD PRESERVING CO. v. GRANITE BITUMINOUS PAVING CO.

Mo. 16441.

St. Louis Court of Appeals. Missouri.

November 7, 1922.

Appeal from St. Louis Circuit Court; Vital W. Garesche, Judge.

"Not to be officially published."

Action by the United States Wood Preserving Company against the Granite Bituminous Paving Company, in which a counterclaim was interposed. Judgment for plaintiff for the difference between its claim and defendant's claim, and it appeals. Affirmed.

J. D. Johnson, of St. Louis, for appellant.

Sturdevant & Sturdevant, of St. Louis, for respondent.

BECKER, J.

This is a suit for the recovery by plaintiff, a New Jersey corporation, of $3,898.95, balance due for a lot of wood paving blocks sold by plaintiff and shipped to defendant, a West Virginia corporation, at St. Louis, Mo., where it was licensed to do business. Defendant, by its amended answer, admitted that it was indebted to plaintiff for the said sum of money, but set up a special defense, which, however, for the purposes of this appeal, need not be set out here, in that it in no wise affects the questions involved in this appeal.

The defendant, by way of a counterclaim, alleged in its amended answer that on or about the 25th day of September, 1906, plaintiff entered into a written contract with one Clarence A. Kenyon (which we will hereinafter call the Kenyon contract), whereby "said Kenyon contracted, in his own name, as the agent and for the benefit of" defendant, and "defendant became the agent and representative of the plaintiff, and undertook to promote wood block paving, and the laying of wood block streets treated by its processes, in and for the city of St. Louis and adjoining territory within a radius of 60 miles therefrom." Defendant also set out in detail in its answer the obligations assumed between plaintiff and defendant in said contract, and alleged that, while defendant had performed all the conditions of said contract imposed on it, plaintiff had violated its obligations, to defendant's damage in the sum of $8,373.53, for which sum defendant prayed judgment.

Plaintiff's reply admitted the execution of said contract between plaintiff and Kenyon, but denied the other averments respecting the same. There was a trial to the court, without a jury, and the court found in favor of plaintiff for its debt, with interest on the same, in the aggregate sum of $5,964.33, also in favor of defendant on its counterclaim in the sum of $4,373.43, and rendered judgment in favor of plaintiff for the difference between said two sums, to wit, the sum of $1,590.90. Each party filed a motion for a new trial, each of which was overruled, and in due course plaintiff appealed.

The lower court having found for plaintiff for its entire debt, with interest, also in favor of the defendant for a lesser sum on its counterclaim, and rendered judgment in plaintiff's favor for the difference, the only question involved in plaintiff's appeal is whether the court's finding and judgment on said counterclaim is correct; that is to say, did the breach of the Kenyon contract, as alleged in the defendant's answer, constitute a valid counterclaim in defendant's favor and against the plaintiff in this action?

It is argued by plaintiff that it appears from the Kenyon contract itself, as well as from all the evidence in the case, that the said contract was executed by Kenyon for himself, and not as agent for the defendant, and that therefore a several judgment could not be had thereon by defendant against plaintiff for its alleged breach of the contract by the latter, and further that, even though it be held that the Kenyon contract was executed by Kenyon as agent of and for the defendant, then such contract was in fact the joint contract of Kenyon and the defendant, and consequently a breach of the contract could not constitute a counterclaim in favor of defendant alone against the plaintiff in this action.

We are satisfied, from a reading of the record before us, that it contains ample testimony to sustain the finding of the trial court to the effect that the Kenyon contract was executed by Kenyon as agent of and for the defendant, Granite Bituminous Paving Company. Reducing, then, plaintiff's contention here on appeal to its simplest terms, it is that, since we hold that the said Kenyon contract was executed by Kenyon as agent of and for the defendant, then it was in fact the joint contract of Kenyon and the defendant, and any breach of said contract would not constitute a counterclaim in this action in favor of the defendant and against the plaintiff. In other words, the breach of the Kenyon contract by plaintiff would only create a joint right of action in favor of defendant and Kenyon against plaintiff, enforceable alone by them jointly, and could not be made the basis of a counterclaim against the plaintiff by defendant alone; and since defendant's counterclaim sets up the fact that...