34 Mo. App. 179 | Mo. Ct. App. | 1889
delivered the opinion of the court.
This suit was commenced before a justice of the peace in the city of St. Louis. There was a judgment for plaintiff before the justice, and defendant appealed. On a trial in the circuit court, before a jury, there was a verdict and judgment for defendant. Hence this appeal.
Plaintiff complains in this court of the exclusion of legal and competent testimony offered by him, and of the action of the court in giving and refusing instructions.
We will first dispose of the questions arising , on the objections to testimony.
I. The plaintiff sued the defendant upon an account for game, poultry, vegetables and fancy groceries, amounting to $102.32, alleged to have been purchased by defendant of plaintiff. Plaintiff testified that he sold the goods to one Jack Liss, who was a caterer for the defendant, that Liss told him to charge the goods to defendant, and that defendant would pay
Plaintiff’s counsel then offered to prove by his client, “that it was the general usage and custom of caterers of clubs and societies in the city of St. ■ Louis to buy, for their club, meats, provisions and other food.’’ This testimony was excluded on defendant’s objection.
“Evidence of usage or custom in a particular business, is admissible, not for the purpose of enlarging the powers of an agent, but for the purpose of interpreting powers which are actually given. Thus an agent to sell may be shown to have authority to sell on credit, provided the usages of trade authorize it, but without such usage the power to sell would be construed to be limited to a sale for cash.”
This same rule applies to a purchasing agent. Story Agency [9 Ed.] sec. 77.
Before any such testimony could have been admissible in the case at bar, there must have been some competent testimony tending to prove that Liss as the agent ,of defendant, had authority to make similar purchases for defendant.
A caterer is a “ buyer, ” “purchaser” or “provider,” of provisions. The word “caterer” does not indicate that the person named has the right to buy provisions as the agent of some third party. If there had been any testimony that Liss had authority to make like purchases,’ ás the agent of defendant, then the right to buy on credit might have been shown by the general usage or custom of caterers. Because the right to' buy does not necessarily involve the right to buy on credit.
We do not think the testimony was admissible;
Counsel for plaintiff asked his witness, George Milford, the following questions :
Q. “I will ask you if you sold any goods ab any time to the Harmonie Club ? ”
Q. “I will ask you if Jack Liss, as caterer of Harmonie Club, ever bought oysters of you for the club, and you charged them to the club, and you- wrote to the president of the club (Moses Fraley), about your bill which he said he would see paid?”
Objection was made by defendant’s counsel to these questions and the objection was sustained;
In sustaining the objection to the latter • question, the court informed counsel for the plaintiff, that the plaintiff was not precluded from showingany declaration or admission by Fraley or any other officer of the defendant corporation, having a tendency to establish the agency of Liss to buy goods for defendant. The counsel for plaintiff chose to stand on the question as propounded.
An agency may be inferred from circumstances,-, and need not be established by direct and positive testimony;
II. The remaining question of which appellant complains, pertains to the instructions. Defendant read in evidence a contract between Liss and defendant. The only portions of this contract which are necessary and material to a full understanding of the questions presented by the instructions are as follows:
“ 2. Said Harmonie Club hereby gives and releases to said Jack Liss all the profits and revenues which' he may derive or receive from the sale of liquors, cigars and refreshments and none other.”
“4. Said Liss agrees faithfully to serve said dub in his capacity as caterer for six months, and agrees to serve the members of said club with good, wholesome, proper viands, liquors, cigars and refreshments, at such prices to be determined upon by the house committee of said club, and agrees to keep the necessary help for proper service in the club house.”
Several of defendant’s officers, without any objection being offered, testified in effect, that Liss had no authority to buy provisions or goods on defendant’» account. That Liss was to keep the club house in proper order, furnish help and serve the members of the club with eatables, etc. That the club had nothing to do with Liss’ purchases. That they had no' notice that Liss was holding himself out as the agent of defendant, with authority to make purchases on it» account.
The plaintiff asked the court to instruct the jury as follows, this the court refused to do :
The court instructs the jury that if they find from the evidence that the defendant is a club organized for social purposes and that it has meals, eatables and refreshments served for its members at the club house, in the city of St. Louis, Missouri, in the preparation of which it is necessary to have and use provisions, vegetables, game and articles of food, and if the jury further find from the evidence that the defendant employed at a salary, as its caterer or agent, one Jack Liss, who, by reason of the terms of his employment, resided in and had charge of said club house, and of the taking' care thereof subject to the direction of its board of directors and officers, and if the jury further find that the defendant or its officers gave to said Liss either or apparent general authority to buy and purchase for it the provisions, vegetables, meat and articles of food used in said club house by the members of said club, or if it held said Liss out, or permitted him to hold himself out,
The defendant on its part requested the court to give the jury, among others, the following instruction:
The jury are further instructed that if they believe from the evidence that Jack Liss was acting in the Harmonie Club as its caterer under the written contract introduced in evidence, and a renewal of said contract orally, then they are instructed that said Liss was an independent contractor of the catering department of said club under said contract, and was not authorized under its conditions to bind said club as its agent in the purchase of the goods in controversy.
Which instruction the court gave to the jury, to the giving of which plaintiff duly excepted.
By this instruction, the court told the jury that if Liss was acting under the written contract, then he was an independent contractor of the catering department
The evidence in the case leaves no doubt of the fact, that all of Liss ’ authority was derived from the contract, and there was no evidence tending to prove that the officers of defendant held Liss out as authorized to buy on defendant’s credit.
Hence the only question, necessary for this court to decide, is whether, the trial court was right in' the construction of the contract.
The construction of this contract is not free from difficulty. The law is well settled that where there is no ambiguity in the language or terms of a written instrument, then extrinsic evidence is inadmissible’ to explain or vary it. But if the contrary appears, then evidence of the conduct of the parties, as to the interpretation put on the instrument by them, becomes admissible. Appellant claims, “that by the terms of the second paragraph of the contract, Liss was to receive the profits only from the sale of liquors, cigars and refreshments and none other. That the profits arising from the sale of viands, mentioned in the fourth paragraph, belongs to defendant, and that there was no provision in the contract requiring Liss to provide food.” etc.
If defendant was to furnish the provisions, and pay for them, why should the defendant contract with Liss that they “should be of good quality,” etc: ? And why should the prices to be paid for viands by the members of the clul), be determined by the house committee of said club?
If the members of the club were running an eating house on their own account, and Liss was merely a servant whose only duty it was “to perform the domestic duty of attending on the table” (as contended by plaintiff’s counsel), then why should defendant in its contract
The officers of defendant testified without objection that Liss was to buy the provisions and receive the profits arising from the sale of viands. This testimony entirely negatives the idea that the parties to the contract put a different interpretation upon it from the one plainly indicated hy its terms.
'Under our view of this contract, the court did right in refusing plaintiff’s instruction, and in giving the instruction asked by defendant.
the judgment will be affirmed.