75 Mo. 100 | Mo. | 1881
Plaintiffs sued defendant for balance on. account for lumber sold, $497.68. In his answer, defendant, admits the purchase, but his defense is, that there is in the-account an overcharge of $35, that he' is entitled to a credit-of $184.36, paid on the account, and that plaintiffs owe-him $261, as commission on lumber sold by plaintiffs to defendant’s employers, on defendant’s recommendation, for which he alleges plaintiffs agreed to pay him a commission of two and one-half per cent. All of these allegations were denied by plaintiffs’ replication. The defendant obtained a judgment for $38.73, from'which plaintiffs appeal.
The evidence shows that plaintiffs resided at Fork Madison, Iowa, and were engaged in manufacturing and selling lumber; that they established a branch of theiibusiness at Kansas City, Missouri, and placed J. O’Sullivan in charge of it, to sell lumber. O’Sullivan testifies that he-was employed by plaintiffs to sell their lumber. Samuel Atlee, on.e of plaintiffs, testifies that O’Sullivan was not' authorized to make any agreement to pay commissions to-other persons for selling their lumber. The firm paid O’Sullivan a salary of $1,800 per annum. The defendant,, Fink, testifies that he, O’Sullivan and ~W. H. Atlee, (who-was not a member of the firm of plaintiff's,) were together-when O’Sullivan and defendant made the agreement by which the latter was to receive the commission on sales-O’Sullivan might make to defendant’s employers through defendant’s influence with them; that his employers paid.
• Under this view, it is wholly immaterial whether the agreement made by O’Sullivan with the defendant was ratified or not by the plaintiffs. The ratification of the contract would not have eliminated the element which rendered it invalid. The trial court entertained a different view of the subject, and embodied, in instructions given, that erroneous view, and refused instructions asked by plaintiffs which declared the law as herein announced, and its judgment is, therefore, reversed and the cause remanded.