106 Mo. App. 236 | Mo. Ct. App. | 1904
Action for merchandise sold and delivered, as' is asserted, to the defendant. The case originated before a justice of the peace, went to the circuit court and on a trial anew there resulted in a verdict and judgment for the plaintiff.
The main contention of the defendant is that Hummell was not the agent of the Bowser Milling Company, but was an independent operator running the mill at Crosno on his own account and that he paid his employees by furnishing them the goods in question.
The trial court submitted the issue to the jury of whether Hummell was the agent of the defendant company, telling them the agency might be proved by circumstances and the course of dealing and that it was not necessary to show it by direct proof, which is the law.
Tilden Crosno testified that J. M. Bowser, who was president or general manager, must have known the account was charged to him or the company; that he had entire control of the business and that Hummell acted as the firm’s agent. The effect of that testimony was weakened by a statement that he had never had any conversation with Bowser about the business and did not
George' Doughty testified that he worked for the milling company in 1901 and not for John Hummell; that the latter was running the mill as boss and the other men who worked there did so as employees of the company; that when he (Doughty) got anything from the plaintiff’s store, it was deducted from what the company owed him; that Hummell owned no mill and did not claim the mill or logs, but the output was sold by the milling company. This witness testified, too, that Hummell gave him orders and when pay-day came Bowser settled with him. He also testified that he understood Hummell was sawing at so much per thousand for Bowser, and on this statement it is contended Hummell was an independent operator. But obviously the statement does not carry that inference necessarily;
There was evidence to warrant the conclusion that the goods in controversy were purchased by the defendant, but error was introduced by permitting plaintiff to testify to the arrangement between him and the president of the defendant company. Plaintiff was a party both to the original contract and to the cause of action on trial; a party in interest, too, who would have been incompetent as a witness at common law; and as the agent of the defendant with whom he made the contract was dead, he was an incompetent witness as to transactions that occurred between them. This is the construction given, to section 4652 of' the Revised Statutes. Nichols, etc., Co. v. Jones, 32 Mo. App. 657; Robertson v. Reed, 38 Id. 32; Williams v. Edwards, 94 Mo. 447; Wollman v. Lang, 143 Mo. 100; Banking House v. Rood, 132 Mo. 256.
In Williams v. Edwards, supra, the precise point was adjudicated. The statute does not provide in terms that a party to a contract made with an agent shall be disqualified by the latter’s death; but its purpose and the mischief to be obviated are held to require the enforcement of the disqualification in such a contingency.
The judgment is reversed and the cause remanded.