Welch-Sandler Cement Co. v. Mullins

• Decision Date: 05 May 1930
• Docket Number: No. 16920.,16920.
• Parties: WELCH-SANDLER CEMENT CO., Inc., v. MULLINS.
• Court: Missouri Court of Appeals

31 S.W.2d 86

WELCH-SANDLER CEMENT CO., Inc., v. MULLINS.

No. 16920.

Kansas City Court of Appeals. Missouri.

May 5, 1930.

Rehearing Denied May 26, 1930.

Appeal from Circuit Court, Jackson County; Ralph S. Latshaw, Judge.

"Not to be officially published."

Action by the Welch-Sandler Cement Company, Incorporated, against William C. Mullins. Judgment for plaintiff, and defendant appeals.

Affirmed.

Wm. E. Kemp and Fyke & Hall, all of Kansas City, for appellant.

Walsh & Aylward and A. A. Ridge, all of Kansas City, for respondent.

BARNETT, C.

This is an action on an open account. The suit was instituted by Welch-Sandler Cement Company against W. C. Mullins and W. C. Mullins Construction Company, a corporation. The petition sets forth an account and alleges that plaintiff sold and delivered to the defendants and each of them, at their special instance and request, the goods specified in the account on the dates therein mentioned, and that defendants and each of them agreed to pay plaintiff the sums therein mentioned. When the cause came on for trial, plaintiff dismissed as to the corporation, and thereafter the cause was tried to the court without a jury. The evidence most favorable to the plaintiff was to the effect that the plaintiff was a corporation engaged in the material business in Kansas City, Mo.; that the Mullins Construction Company was a corporation engaged in the construction business; that W. C. Mullins was president of the construction company; that the construction company began buying materials from the plaintiff in 1923 and in the year 1925 was indebted to plaintiff approximately in the sum of $20,000; that in the midwinter of 1925 and 1926, Judge Welch, the president of the plaintiff company, had a conversation with W. C. Mullins in which Judge Welch said:

"Now, I am not going to carry this account with the Mullins Construction Company. In the first place, they are incorporated for only $20,000 and your account is as much as that."

Mullins answered:

"I am good for it; if I am not my wife is. You know I will be on the square with you."

Judge Welch replied:

"So that we may have that account in better shape for our company, it is better to have that account with W. C. Mullins than with the company."

Mr. Mullins agreed to this and said he would be personally liable for it. Up until the date of this conversation, all sales had been charged on the plaintiff's books to the Mullins Construction Company. After this conversation the amount of each charge for delivery of material to the construction company was charged upon the plaintiff's books to W. C. Mullins. Later, Judge Welch had another conversation with Mr. Mullins in which he urged him to pay on this account, at which time he said:

"Now I have carried you and I have nothing to do with the Mullins Construction Company."

Mr. Mullins replied:

"You are going to get your money."

At one time Mr. Mullins told Judge Welch that if he was afraid of his account with him that Mrs. Mullins had certain real estate in her name and he would cause a mortgage to be given on that. Judge Welch was asked if there was ever a charge on plaintiff's books against Mullins Construction Company for any part of the bill in suit. He answered:

"I know they did not unless they violated my orders."

Mr. Sandler, secretary and treasurer of the plaintiff company, testified that he had a conversation with Mr. Mullins in 1927 at which time he was trying to collect the account and that none of the items were questioned by Mr. Mullins; that Mullins offered to give a mortgage on some property, and said:

"Now you don't need to worry, Harry, you are going to get every dollar I owe you. I never beat anybody in my life, I am personally good for it."

This witness testified he made no demand on the construction company for the payment of the bill; that he never considered that the Mullins Construction Company owed any part of the bill in suit. The Mullins Construction Company was adjudged an involuntary bankrupt, and on the 19th day of April, 1928, the Welch-Sandler Cement Company filed formal proof of debt in the District Court of the United States in the matter of W. C. Mullins Construction Company, bankrupt, in which Harry Sandler swore that he was treasurer of the Welch-Sandler Cement Company, was duly authorized to make the proof, and that the bankrupt was at and before the filing of the petition and still was indebted to the claimant in the sum of $6,400; that the consideration of the debt was "materials furnished." The itemized account attached to the proof of debt in bankruptcy has not been included in the abstract of record, but it appears that defendant offered in evidence the proof of debt, together with the itemized statement of account attached thereto as forming part of that claim. When it was offered the court said:

"It shows the account was there filed in the name of W. C. Mullins."

Counsel for defendant replied:

"The whole document is in, of course."

Counsel for defendant also said to counsel for plaintiff:

"It will go in the bill of exceptions. You have a copy of the account in the petition and I have a copy of it in the copy.

"Mr. Ridge: Will you admit the itemized statement of account attached to the form of proof of claim filed in the bankruptcy court is the identical account in all respects as in this proceeding?

"Mr. Fyke: I will admit that. I will be glad to admit it. It is certainly admitted.

"Mr. Ridge: And that this account attached to this proof of debt is entitled `W. C. Mullins'?

"Mr. Fyke: Of the proof of debt?

"Mr. Ridge: Yes; is headed `W. C. Mullins.'

"Mr. Fyke: Yes, sir.

"Mr. Ridge: Nowhere on the itemized claim appears the name W. C. Mullins Construction Company.

"Mr. Fyke: On the itemized claim?

"Mr. Ridge: Yes, sir.

"Mr. Fyke: I certainly admit it."

The evidence shows that monthly statements were made to W. C. Mullins of the account, in which statements it appeared that the materials which had been delivered to W. C. Mullins Construction Company were charged to him. Beginning on page 171 of the abstract of the bill of exceptions, a great many exhibits are set out which seem to be sales tickets or memoranda. Some of these tickets are headed: "Name, W. C. Mullins." Some recited, "Deliver to W. C. Mullins." Some recited, "Sold to W. C. Mullins." A few recited, "Sold to W. C. Mullins Construction Company," and a few recited, "Deliver to Mullins Construction Company, charge to ____." When the plaintiff's bookkeeper was on the stand, he was cross-examined concerning some of these tickets, and was asked how it happened that in his own handwriting he had made out some of these tickets in the name of the construction company. He answered:

"For the simple reason the order came in and it was an inadvertent error. The order was phoned in `Mullins Construction Company.'"

Again on cross-examination the bookkeeper was asked why certain tickets were made out to the construction company, and he answered:

"It is very natural, as I said for one to call up and say `Mullins Construction Company,' you take it down `Mullins Construction Company.'

"Q. And that is the only reason you did it? A. Yes, sir; you have a phone receiver in one hand and a pencil in the other hand and someone says `Mullins Construction Company' and you write `Mullins Construction Company.'"

The defendant denied that he ever agreed to pay for any of the materials, and denied that he received any statements of account made out to him. At the close of the evidence the court was asked to give a peremptory instruction in the nature of a demurrer to the evidence, which the court refused. Whereupon the defendant prayed the court to give declarations of law. Over the objections and exceptions of defendant the court modified three declarations, but the assignments of error, so far as declarations of law are concerned, are abandoned by appellant's brief, and therefore the declarations are not set out. The court filed a written finding of facts. Judgment was rendered for plaintiff, and defendant has appealed.

Opinion

Appellant contends that the court erred in overruling objections to the introduction of Exhibits 7, 9, 11, 13, 19, 21, 24, 25, 26, 29, 45, 62, 68, 71, and 72, for the reason that said exhibits show upon their face that the cement mentioned in these exhibits, which are sales tickets or memoranda, was sold to Mullins Construction Company; that they were not signed and were not admissible for any purpose; and that the ledger sheets of the plaintiff's books were based thereon and were likewise inadmissble. The complaint that plaintiff's books of account were made from these memoranda and that the books are therefore inadmissible is not tenable. The evidence most favorable to plaintiff is to the effect that there was an agreement between the defendant and the president of the plaintiff corporation that material furnished to the Mullins Construction Company would be charged to the defendant. In most instances the sales tickets were so made out as to show upon their face that the charge was made against W. C. Mullins, but in a few instances when an order was received over the telephone and defendant's agent held the receiver in one hand and made out the ticket with the other, he inadvertently wrote down the name of Mullins Construction Company; but in such instances the charge on the books was made against the defendant, which was strictly according to the agreement of the parties.

It is claimed that there was no competent proof that respondent had sold any cement to the appellant or as to the value thereof or that defendant actually received any of the cement; that the plaintiff's ledger sheets were made up from unsigned tickets by a bookkeeper who did not testify; that the tickets were unsigned and did not prove delivery, and the supervising bookkeeper did not testify that the books were correct. There was independent proof of the delivery of the cement....