Westinghouse Elec. Supply Co. v. Binger

• Court: Missouri Court of Appeals
• Writing for the Court: PER CURIAM
• Citation: Westinghouse Elec. Supply Co. v. Binger, 230 S.W.2d 166 (Mo. App. 1950)
• Decision Date: 16 May 1950
• Docket Number: No. 27783,27783
• Parties: WESTINGHOUSE ELECTRIC SUPPLY CO. v. BINGER.

Page 166

230 S.W.2d 166

WESTINGHOUSE ELECTRIC SUPPLY CO. v. BINGER.

No. 27783.

St. Louis Court of Appeals, Missouri.

May 16, 1950.

Rehearing Denied June 13, 1950.

Forgey & Sindel, St. Louis, for appellant.

Joseph P. Waddock, St. Louis, for respondent.

WOLFE, Commissioner.

This is a suit in which the plaintiff claims to have been defrauded of merchandise of the value of $598.74. It was tried once before and the first trial resulted in a verdict for the plaintiff but the trial court held that the verdict was against the weight of the evidence and set it aside. There was an appeal in that case wherein we sustained the trial court and remanded the case for a new trial. On the second trial, with which we are now concerned, a jury was waived and upon trial by the court and at the conclusion of plaintiff's case the court sustained defendant's motion to dismiss. It is from the order dismissing its case that the plaintiff again appeals.

The evidence as stated on the first appeal, Westinghouse Electric Supply Co. v. Binger, Mo.App., 212 S.W.2d 445, was in part as follows:

'The evidence presented on behalf of the plaintiff was to the effect that R. B. Binger came to its office in Oklahoma City representing that he was employed by the Taylor Lumber and Supply Company of Shawnee, Oklahoma. He talked with the field manager of plaintiff company and told him that the Taylor Lumber and Supply Company was going to put in a new department for the sale of electric fixtures and that he, Binger, was to be in charge of it. Binger was known to plaintiff as a poor credit risk and it had at the time he called at the Oklahoma City Office an unpaid judgment against him. He had been referred to that office by plaintiff's office in Tulsa.

'The Taylor Lumber and Supply Company signed a contract with the plaintiff by the terms of which it was appointed plaintiff's agent. This contract had been presented to the Tulsa office and the credit of Taylor Lumber and Supply Company had been investigated and approved. By reason of this plaintiff started shipping merchandise as ordered by Binger to the Taylor Lumber and Supply Company. Most of the merchandise ordered from time to time was sent by truck but some of it was picked up at plaintiff's place of business of Oklahoma City by Binger. Every order was billed to the Taylor Lumber and Supply Company and the delivery tickets were generally signed 'Taylor Lumber and Supply Company, R. B. Binger'. However, a few deliveries were signed or initialed for by others. This continued from the time of the first order on July 8, 1940, to December 26, 1940, during which period goods of the value of $1799.02 had been delivered. Certain credits were entered to the account and some payments were made which reduced the amount owing to $838.74. After unsuccessful efforts to collect this balance the plaintiff sued the Taylor Lumber and Supply Company on July 22, 1941, in the District Court of Pottawatomie County, Oklahoma. Binger's deposition, which was taken in that case, was introduced in evidence by the plaintiff in the trial of this case. In it he related that he was not employed by the Taylor Lumber and Supply Company and that the company had not authorized him to make any of the purchases except the original purchase made on July 8, 1940, amounting to $75. He further related in the deposition that the goods he ordered were delivered to the Taylor Lumber and Supply Company where he was allowed to store them. He stated that the company made no profit from the purchases and that the original purchase order and the contract signed by the Taylor Company were given to him as an accommodation and that by personal arrangement with the bookkeeper the goods were received and the freight charges on them were paid and entered as a charge against him on the books. Some of the orders were sent to plaintiff on the Taylor Lumber and Supply Company letterheads but Binger stated that he had done this without its knowledge and that the debt was his own. Plaintiff's credit manager testified that in view of...