Westinghouse Elec. Supply Co. v. Binger
| Decision Date | 15 June 1948 |
| Docket Number | 27383 |
| Parties | WESTINGHOUSE ELECTRIC SUPPLY CO. v. BINGER |
| Court | Missouri Court of Appeals |
'Not to be reported in State Reports.'
Forgey & Sindel, of St. Louis, for appellant.
Joseph P. Waddock, of St. Louis, for respondent.
This is an action wherein plaintiff claims to have been defrauded of merchandise and damaged thereby in the sum of $ 598.74. There was a verdict for the plaintiff but the court sustained defendant's motion for a new trial and from this plaintiff has appealed.
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 in 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 these statements by Binger plaintiff settled with the lumber company for $ 400 and dismissed its Oklahoma suit. This present suit is for the loss of the balance of $ 438.74, plus $ 160 paid to plaintiff's attorney in the suit against Taylor Lumber and Supply Company.
In the case under consideration the defendant testified that he had been employed by the Taylor Lumber and Supply Company prior to June, 1940, as an accountant. He stated that he desired to establish an agency for the sale of electrical fixtures in Shawnee, Oklahoma, and with that in mind he discussed the matter with plaintiff's salesman in Tulsa. He related that he admitted to the salesman that his personal credit was not acceptable to the Westinghouse Company and after a discussion of the matter the salesman suggested that he should have the Taylor Lumber and Supply Company establish credit for the purpose of starting a retail outlet in Shawnee. Binger related that he then talked to the president of the Taylor Lumber and Supply Company and it was agreed that it should make application for the establishment of an agency in Shawnee, Oklahoma, and the contract with the plaintiff was signed by the lumber company. He stated that he told the manager of plaintiff's Oklahoma City office that the profits to be derived from the sale of fixtures were to be his and that he only did monthly auditing for the Taylor Lumber and Supply Company. He further related that the lumber company used and sold quite a few incandescent lamps and that he was interested in the sale of fluorescent fixtures. He stated that the fixtures were sold at retail in the name of Taylor Lumber and Supply Company and that the payments for them were made to the company and credited to his account. Plaintiff's invoices, such as were paid, were paid by checks of the Taylor Lumber and Supply Company and signed by one of its officers. He testified that he had authority to make the purchases he made. According to the defendant no demand was made on him for the amount owing until this suit was brought. He went through bankruptcy in St. Louis, Missouri, and the plaintiff company received notice of it.
Defendant's motion for a new trial was sustained by the court 'upon grounds 3, 4 and 8 of the motion'. These are as follows:
'3. The verdict is against the weight of the evidence.
'4. The verdict is against the law and...
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