Wade v. Hardy

Citation75 Mo. 394
PartiesWADE v. HARDY, Appellant.
Decision Date30 April 1882
CourtMissouri Supreme Court

Appeal from Pettis Circuit Court.--HON. WM. T. WOOD, Judge.

REVERSED.

John F. Philips for appellant.

G. C. Heard and G. P. C. Jackson for respondent.

HOUGH, J.

This was an action on a promissory note executed by the defendant to the plaintiff's intestate, W. T. Edelen, on the 1st day of January, 1878, for the sum of $1,800, payable one day after date, with ten per cent interest, and also on an account for $25 for services rendered by said intestate as clerk in defendant's store from January 1st to January 10th, 1878.

Defendant admitted the indebtedness alleged, but by way of counter-claim set up that the defendant, for a number of years, had been engaged in the mercantile business at Knob Noster and Lamonte, Missouri; that he employed said Edelen as his agent to take charge of and conduct the business of said store at Lamonte; that, by the terms of said employment, it was agreed and understood between them that said Edelen was to sell goods for cash, and not otherwise; that said Edelen promised and agreed not to sell the goods upon a credit, and that if said Edelen did sell on a credit, it was at his own risk; that the consideration of the note and account sued on was for the wages of Edelen under said employment. It further averred that said Edelen, in violation of said agreement and instructions, sold a quantity of defendant's goods on a credit, for a part of which he took notes amounting to $976.26, and the remainder was accounts to the amount of $658.56, an itemized list of which was filed with the answer; which sums it was averred had not been paid to defendant; for which he asked judgment, and prayed that the same might be recouped out of the sum sued on.

The reply denied the facts constituting the counter-claim set up in the answer, and averred that on the 1st day of January, 1878, said intestate and the defendant had a full, final and complete settlement and adjustment of all matters and transactions between them up to that date, and that the defendant thereupon made the note sued on.

Testimony was offered by the respective parties tending to establish the allegations contained in the answer and reply. The defendant also offered evidence tending to show that most of the parties owing the notes and accounts referred to in his answer were insolvent. The plaintiff and another witness were permitted to testify as to various acts and statements of the defendant relating to the matters in controversy done and made after the grant of letters of administration to the plaintiff. The defendant offered himself as a witness for the purpose of testifying in relation to the acts and statements attributed to him by the plaintiff and said other witness, after the grant of letters as aforesaid, but was not permitted to testify.

The court gave the following instructions for plaintiff:

1. The note and account sued on by plaintiff are admitted; and in order to deduct therefrom the counter-claim set up by defendant, the jury must believe from the evidence in the case, either that by the contract of employment of Edelen by defendant, it was mutually agreed between them that Edelen should sell for cash only, or that during the employment defendant instructed Edelen not to sell on credit, but for cash only, and that notwithstanding such contract or instructions Edelen did sell goods on credit, and that the notes and accounts mentioned in the counter-claim are for sales made by Edelen on credit, and that the same are still unpaid to defendant.

2. Even if you believe that Edelen sold goods for the defendant on credit in violation of the instructions of defendant, yet if you further believe from the evidence that afterward defendant, with full knowledge thereof, acquiesced in and ratified the said credit sales, then it has the same effect as though he originally authorized them to be made.

3. To ratify the acts of Edelen, it is not necessary that there should have been any positive or direct confirmation by defendant. You are authorized to find a ratification from the acts and conduct of the defendant relating to these matters, if you are satisfied from such acts and conduct of defendant that he intended and did ratify the acts of Edelen.

4. Even if you believe that Edelen sold goods for the defendant on credit, in violation of instructions, yet if you further find that Edelen and defendant had settlements of the matters and business between them, including matters now in suit; that defendant had full knowledge of the matters set up in his answer; that, on a settlement with Edelen, defendant made the note now in suit, and that he took into his possession and management the notes and accounts for goods sold on credit, you are authorized to find that there was a ratification of the acts of Edelen as defendant's agent.

5. If the jury find from the evidence that on or about the 1st day of January, 1878, Edelen and defendant had a settlement between them of the matters pertaining to the employment of Edelen by defendant, and of his management of defendant's business up to said time; and that at said time, in pursuance of said settlement, defendant executed to Edelen the note in suit, for the amount agreed by said parties to be then due Edelen, and that at said time defendant had knowledge of the matters complained of in his counter-claim, then it devolves upon defendant to show to your satisfaction, that the said matters complained of in his said counter-claim were not embraced in and adjusted by said settlement.

6. It devolves on defendant to establish to your satisfaction, from the evidence in the case, the defense he has set up in his answer, and unless he does so, you should find for plaintiff upon both counts of the petition, making a separate finding of the amount you may find to be due on each count.

The following instructions were asked by the defendant:

1. If the jury believe from the evidence that defendant employed Edelen to manage and conduct defendant's store at Lamonte, with directions to sell goods for cash, and not on credit, and that Edelen, notwithstanding, did sell defendant's goods on credit, on his own responsibility, then he became liable to defendant for all such goods so sold and not paid for.

2. If the jury believe from the evidence that defendant employed Edelen to manage and conduct defendant's store at Lamonte, with instructions not to sell the goods on credit, and Edelen did sell goods on credit, assuring defendant that he would be responsible to him for the same, then, although defendant may have known that Edelen was selling the goods on credit, such fact did not relieve him from liability to defendant for losses occasioned thereby.

3. If the jury find from the evidence that Edelen did sell defendant's goods on credit, under the circumstances and conditions stated in the foregoing instructions, then the jury will deduct from the amount found to be due and owing on the claim of plai...

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