W. B. Makinson Co. v. Meletio & Oyster Co

• Decision Date: 02 May 1922
• Docket Number: No. 17155.,17155.
• Citation: 241 S.W. 959
• Court: Missouri Court of Appeals
• Parties: W. B. MAKINSON CO. v. MELETIO FISH & OYSTER CO. et al.

241 S.W. 959

W. B. MAKINSON CO. v. MELETIO FISH & OYSTER CO. et al.

No. 17155.

St. Louis Court of Appeals. Missouri.

May 2, 1922.

Appeal from St. Louis Circuit Court; Franklin Ferriss, Judge.

"Not to be officially published."

Action by the W. B. Makinson Company, a corporation, against the Meletio Fish & Oyster Company, a corporation, and another. Judgment for plaintiff, and defendants appeal. Reversed and remanded.

John T. Fitzsimmons and Sylvan Agatstein, both of St. Louis, for appellants.

Wilson & Trueblood, of St. Louis, for respondent.

BRUERE, C.

Assumpsit on an account for goods sold and labor furnished to the Kissimmee Fisheries. It was commenced before a justice of the peace, and appealed to the circuit court of the city of St. Louis. A verdict and judgment was obtained in said circuit court in favor of the plaintiff for $223.94, from which judgment defendant appeals. The petition, in substance, alleges that the defendant Meletio Fish & Oyster Company owned and operated a business known as the Kissimmee Fisheries at Kissimmee, Fla., and that plaintiff sold and delivered to it merchandise of the reasonable value and for the prices agreed upon as shown by the exhibited account. The petition further alleges that the Meletio Fish & Oyster Company transferred all its assets to the defendant the Meletio Sea Food Company, and that the Meletio Sea Food Company assumed and agreed to pay the debts of the Meletio Fish & Oyster Company.

The exhibited account is made a part of the petition, and contains numerous items of merchandise, together with various items for labor. The items for labor total the sum of $97.99, and the amount sued for is $223.94. Defendants filed no answer, but admitted at the trial that the defendant Meletio Sea Food Company had agreed and assumed to pay the debts of defendant Meletio Fish & Oyster Company.

At the trial in the circuit court the only evidence introduced on the part of the plaintiff was the deposition of W. B. Makinson, its president. Defendants filed a timely motion to strike out parts of said deposition. The part so attacked reads as follows:

"The statements of the bill of goods attached to the pleadings in this case on my behalf is a true and correct statement of the goods furnished the Meletio Fish & Oyster Company on the order of Mr. Alex Rosen, its manager, and also on the order of one of the auditors of the Meletio Fish & Oyster Company, who was sent here to check up their business at this place. The local business conducted by Mr. Rosen was conducted under the name of the Kissimmee Fisheries, but I was assured by Mr. Rosen and by the auditor of Meletio Fish & Oyster Company that the said Meletio Fish & Oyster Company owned and controlled the entire business of the Kissimmee Fisheries, and that Mr. Rosen was only acting as manager for them."

The court sustained said motion as to the words "by Mr. Rosen and," contained in the deposition, but overruled the motion as to the remainder.

The defendant Meletio Fish & Oyster Company at the trial denied and contested the allegation contained in the petition that it owned and operated the business known as the Kissimmee Fisheries, therefore it was incumbent on the plaintiff to establish said allegation by proper proof.

It is a well-settled rule of law that the declarations or acts of a person who assumes to act as the agent of another are not admissible to establish the agency. The court should have stricken out that part of the deposition which had reference to the declarations and acts of Mr. Rosen and the assurances of the supposed auditor of the defendant ...