A. W. Mendenhall Co. v. Booher
| Decision Date | 01 February 1932 |
| Citation | 48 S.W.2d 120,226 Mo.App. 945 |
| Parties | A. W. MENDENHALL COMPANY, APPELLANT, v. C. C. BOOHER, JR., RESPONDENT |
| Court | Kansas Court of Appeals |
Appeal from the Circuit Court of Jackson County.--Hon. Darius A Brown, Judge.
AFFIRMED.
Judgment affirmed.
L. C Harper, Newbill & Brannock and Davis & Davis for appellant.
Omar E Robinson and Kenneth W. Tapp for respondent.
This is an action on account for merchandise sold. The suit was instituted in the court of a justice of the peace of Kaw Township, Jackson County, Missouri, on October 7, 1929.
The defendants entered appearance and waived issuance of summons. There was a judgment for plaintiffs in the justice court and an appeal was taken to the circuit court where the case was consolidated with four similar cases and tried de novo, upon an agreed statement of facts. A jury was waived and trial was to the court, resulting in judgment for the defendants. Motion for new trial was overruled and plaintiffs have appealed.
While the record discloses that the instant case, with four other similar cases, was filed in the justice court, where judgments were for plaintiffs, and on appeal to the circuit court, judgment in each case was for defendants. In each case there was a different plaintiff but the defendants were the same, and judgment in each was the same. The only case briefed here is that of Mendenhall Company v. C. C. Booher, Jr. et al., and our ruling in this case carries with it a determination of the companion cases.
The agreed statement of facts is rather long and it is unnecessary to set it out in haec verba, but for purposes of this appeal, the purport thereof may be stated as follows:
On or about May 20, 1928, defendants associated themselves together for the purpose of organizing a pro forma corporation to be known as the Triangle Drug Club, and presented to the circuit court of Jackson county, Missouri, a petition and articles of agreement therefor, stating that no other articles or agreement existed; that the decree was pronounced proper and according to law by amicus curiae appointed by the court; that a certified copy of the court's order granting the decree was attached by the clerk to the articles of agreement; that defendants failed and neglected to record said articles of agreement in the office of the recorder of deeds of Jackson county, Missouri, at that time, but thereafter on July 12, 1929, the same were duly filed for record; that defendants wholly failed and neglected to file the articles of association in the office of the secretary of state at that time, but on July 15th, did file them; that defendants, under the name of the Triangle Drug Club, issued no stock certificates, nor offered for sale or distribution among themselves any stock, bonds, shares, certificates, debentures or notes, or securities offered for sale or sold by the Triangle Drug Club, to anyone else; that plaintiffs contracted with the Triangle Drug Club, understanding the same to be a corporation, at the time of such sale and delivery of merchandise on account of which this suit is brought; that all of the foregoing constitutes the agreed stipulation of facts on which these cases were tried before the justice of the peace. It is further agreed that following the issuance of the pro forma decree, the Triangle Drug Club engaged in business as specified in the articles of agreement, having as its place of business a store room located at 1207 Brooklyn avenue; that the same was its only place of business and on the front window of said room was the sign and name--Triangle Drug Club; that Charles P. Dixon who was named in the articles as one of the incorporators and also secretary, remained at the place of business in charge and control thereof; that said Dixon ordered, in the name of the Triangle Drug Club, Inc., the merchandise here in issue, and for the price of which these suits are instituted; that said merchandise was delivered to, and in the name of, the Triangle Drug Club, Inc., and none of plaintiffs had knowledge of restrictions, if any, on the power and authority of said Dixon; that the prices charged for the merchandise in the amounts sued upon are just, true and unquestioned, and that said amounts are due and unpaid; that neither the individual defendants nor any of them had specific knowledge of the orders involved in these suits and did not actually receive any of the merchandise ordered; that defendants had requested said Dixon not to place any orders for merchandise without their consent; that said restrictions were not conveyed to plaintiffs and plaintiffs had no knowledge thereof.
It is stipulated that plaintiffs objected to the materiality of any directions given by defendants or any of them to said Dixon; that while the sale and delivery of said merchandise was made to said Triangle Drug Club, Inc., it was not at that time a completely incorporated company; that at the time the merchandise was sold, there had been nothing filed in the office of the secretary of state nor with the recorder of deeds of Jackson county, Missouri, in connection with the incorporation of the company, but at the time, the pro forma decree had been entered; that the merchandise, for the price of which these suits were brought, was such as is ordinarily handled in the retail drug business; that each of the defendants were, at the time of said sale and delivery, engaged in the retail drug business; and that under the articles of agreement on which the pro forma decree was rendered, one of the avowed purposes of the club was to engage in the cooperative buying of such merchandise. Article 1, of the articles of agreement, is as follows:
"Know all men by these presents: That the undersigned, with a view of becoming a body corporate and politic under Article 2 of Chapter 90, of the Revised Statutes of Missouri, 1919, do hereby associate ourselves, our successors, and those who may join us, together under the name of Triangle Drug Club for the purpose of owning or leasing, establishing and maintaining a proper head-quarters and necessary, suitable and convenient quarters for the purpose of maintaining a place of common and friendly intercourse for the promotion of the moral, mental and fraternal welfare of the retail druggists of this territory and for advancing by rational amusements and community gatherings the moral and mental welfare of ourselves, or members, our neighbors, and our associates and for the purpose of analyzing the problems and laws affecting the retail druggists of this territory, and for the purpose of making investigations into the conditions of the general drug trade and for the purpose of engaging in cooperative buying for the members of the Triangle Drug Club."
There is but one assignment of error, to-wit, the court erred in failing to find defendants...
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