Ingalls v. Averitt

34 Mo. App. 371 | Mo. Ct. App. | 1889

Gill, J.

I. The objection to the sufficiency of the statement is not well taken. The suit is for account of goods sold and delivered and the statement is ample to advise the defendant of the matter with which he is charged. R. S. 1879, secs. 2851, 2852; Coughlin v. Lyons, 24 Mo. 533, and other cases decided by the supreme court of Missouri, cited in plaintiff’s brief.

The case reported in 28 Mo. App., p. 521, relied on by defendant’s counsel, it seems was so decided on authority of Hill v. Ore & Steel Co., 90 Mo. 104. But the latter case will not justify this court in holding the statement filed in this cause to be insufficient. The statement' contained in the 24 Mo., supra, was substantially as in the case at bar, and the supreme court held such statement all the law required, and so we hold as to the statement now under consideration.

II. The trial court ruled properly in refusing the application of the administrator of the estate of Averitt & Hall to be made a party defendant in the cause. The plaintiff was seeking to charge the defendant, A. I). Averitt, on an account for a cow sold and delivered to him. If the cow was not sold to him, Averitt, bnt was sold to another then that would have been proper matter of defense. If the cow was sold to the defendant and another, then the plaintiff had his election to pursue one or both, since the obligation would have been a several as well as a joint obligation. If Averitt was not the principal in the purchase of the cow and was acting, not in his own behalf, but as agent for another then it was clear the agency was undisclosed, and even in that case the plaintiff might sue the agent of such undisclosed principal. The evidence throughout all shows that both parties dealt with each other in proper person, and, as appears by defendant’s own statement of the cause, now appended to his brief, the defendant appeared in the suit before the justice, and admitted having contracted for the cow in his own behalf, and sought to defend the action by showing she was not of the quality promised by the plaintiff. Under the circumstances it would have been trifling with justice to have permitted the administrator of ah estate to be substituted in the circuit court as defendant, thereby depriving the court of jurisdiction for the reason that justices of the peace are not permitted to try causes against an administrator, as provided by Revised Statutes, 1879, section 2837.

III. Neither did the circuit court commit error in admitting evidence as to conversations had with Flowers, defendant’s agent, in charge of the butcher shop at the time of the delivery of the cow, nor in submitting the question of Flowers’ authority to receive the animal. It is true, as stated by Judge Norton, in 58 Mo. 385, that to entitle plaintiff to this evidence there must be a prima-facie case of agency shown before the declarations of the agent can be admitted. Flowers was shown to be in charge of the business at the shop — was there alone on the day the cow was delivered, apparently in full charge of the defendant’s business. Third parties had the right to assume that he was authorized to act for the defendant in all the business ordinarily transacted at the shop. They had a right to assume his authority to accept stock for slaughter and to slaughter and sell the same in the usual way. He was then apparently defendant’s general agent in charge, and his declarations, made while transacting the business of which he had apparent charge and connected therewith, were properly admitted. The court’s instruction, number 4, was a proper declaration of the law. Story Ag., sec. 127.

Perceiving no errors, the judgment of the circuit court is affirmed.

All concur.