Will Docter Meat Co. v. Hotel Kingsway

• Court: Missouri Court of Appeals
• Writing for the Court: PER CURIAM
• Citation: Will Docter Meat Co. v. Hotel Kingsway, 232 S.W.2d 821 (Mo. App. 1950)
• Decision Date: 19 September 1950
• Docket Number: No. 27820,27820
• Parties: WILL DOCTER MEAT CO. v. HOTEL KINGSWAY, Inc. et al.

Page 821

232 S.W.2d 821

WILL DOCTER MEAT CO. v. HOTEL KINGSWAY, Inc. et al.

No. 27820.

St. Louis Court of Appeals, Missouri.

Sept. 19, 1950.

Victor Packman and Irl B. Baris, of St. Louis, for appellants.

Forgey & Sindel, of St. Louis, for respondent.

BENNICK, Commissioner.

This is an action by Will Docter Meat Company upon an account of $2,198.94 for meat sold and delivered between December 3, 1946, and February 6, 1947, for use in the restaurant operated in Hotel Kingsway in the City of St. Louis.

The whole issue in the case was one of determining the identity of the parties liable on the account.

Plaintiff recovered judgment for the full amount of its account against certain of the named defendants, whose appeal to this court has followed in the usual course.

The hotel itself, that is, the land and the improvement erected upon it, was owned by a corporation known as Kingsway Holding Company. As its name implies, the sole function of such corporation was to hold title to the physical property. A separate corporation known as Hotel Kingsway, Inc., originally operated the hotel as a business establishment, and in that connection operated the restaurant which was maintained on the premises as a part of the hotel's facilities. This procedure remained in effect until October 31, 1943, when Hotel Kingsway, Inc., ceased the operation of the hotel, but continued the operation of the restaurant.

At that time the operation of the hotel, exclusive of the restaurant, was taken over by a partnership composed of Morris Steinbaum, Freida Steinbaum, Harry Steinbaum, Albert Steinbaum, and Jerome Steinbaum, who carried on their business under the name of Hotel Kingsway Operating Company. The Steinbaum family group comprised the financial interests that had acquired the hotel at some time prior to the inception of the present controversy. Morris Steinbaum was the president of Hotel Kingsway, Inc., and was nominally the manager of the hotel. However the actual management was in the hands of his son, Harry Steinbaum, who held the title of assistant manager. A younger son, Jerome, served as assistant to Harry.

One William Johnson had been employed as chef at the hotel since November, 1944. Presumably his actual employer was Hotel Kingsway, Inc., the corporation engaged in the actual operation of the restaurant. In his capacity as chef he ordered supplies for the restaurant, some of which were obtained from Will Docter Meat Company.

On April 1, 1945, Johnson himself took over the operation of the restaurant under a verbal lease negotiated with Morris Steinbaum. So far as the record reveals, there was no attention given to the precise capacity in which Morris Steinbaum was acting in negotiating the lease, whether as president of Hotel Kingsway, Inc., or as manager of the hotel and member of the partnership doing business as Hotel Kingsway Operating Company. It may have been that as head of the family group which had acquired control of the hotel, he was not concerned at the moment with the necessity for observing formalities growing out of the manner in which such control was being exercised.

When Johnson took over the operation of the restaurant, he gave no notice of his new status to the firms from which he bought supplies, nor was any notice given by the individuals and corporations interested in the management of the hotel. On the contrary, he was permitted to deal with the different salespeople on the same apparent basis as when he had been buying for the Steinbaum interests, and his orders were taken in the name of Hotel Kingsway, which was the name he used in the operation of his restaurant. As a matter of fact, he had had a conversation with Morris Steinbaum and certain of his associates in March, 1945, just prior to taking over the operation of the restaurant, in the course of which Morris Steinbaum had advised him that unless he carried on his business in the name of the hotel, he might not be able to get supplies. In other words, the idea was that the firms with which he dealt might not be willing to furnish supplies on the strength of his own credit, but would continue to serve him if they were left to assume that they were doing so on the strength of the hotel's credit. His license was issued to William Johnson doing business as Hotel Kingsway. The supplies were delivered to the hotel, and bills were sent to and accepted by the hotel, and then taken down and turned over to Johnson by one of the hotel's employees. It is true that the checks in payment were drawn against his own personal account, but they were then transmitted to the respective creditors in hotel envelopes, or at least plaintiff's evidence so disclosed.

It appears that the hotel management became dissatisfied with the manner in which Johnson operated the restaurant, and in February, 1947, he was relieved of control, and the restaurant was taken over by the partnership whose members carried on their business under the name of Hotel Kingsway Operating Company. It will be recalled that the operation of the hotel, exclusive of the restaurant, had been in the hands of the partnership since October 31, 1943. It was not until Johnson was relieved of control that Will Docter Meat Company received its first intimation that the Steinbaum interests had not been operating the restaurant during the time it had furnished the supplies in question; and when the Steinbaum interests refused to honor the account, Will Docter Meat Company caused the present action to be instituted.

Faced with a dilemma as to who was liable on the account, plaintiff brought its action against Hotel Kingsway, Inc.; Kingsway Holding Company; William Johnson and Morris Steinbaum individually; and Morris Steinbaum, Freida Steinbaum, Harry Steinbaum, Albert Steinbaum, and Jerome Steinbaum, copartners, doing business as Hotel Kingsway Operating Company.

In its petition plaintiff charged that defendant William Johnson had operated the restaurant as the agent of the other named defendants, and that it had sold the merchandise in question at the special instance and request of such named defendants acting through their agent, defendant William Johnson.

In their answer defendants denied that Johnson had been the agent for the other defendants, or that the merchandise had been sold and delivered by plaintiff at the special instance and request of such defendants.

There was a further defense under the statute of frauds, Sec. 3355, R.S.Mo.1939, Mo.R.S.A. Sec. 3355, based upon the alleged lack of a note or memorandum in writing signed by the defendants or their agent lawfully authorized.

During the trial of the case the court directed a dismissal as to defendant Kingsway Holding Company, whose only function was to hold title to the real estate. The jury found in favor of defendants William Johnson and Morris Steinbaum, but found in favor of plaintiff, and against defendants Hotel Kingsway, Inc., and Morris Steinbaum, Freida Steinbaum, Harry Steinbaum, Albert Steinbaum, and Jerome Steinbaum, copartners, doing business as Hotel Kingsway Operating Company.

Following an unavailing motion for a new trial, the defendants against whom the verdict had gone gave notice of appeal, and by...