59 Mo. App. 195 | Mo. Ct. App. | 1894
This is an action which was brought-on account for $125, for one barrel of whisky, sold and delivered by plaintiffs to defendant. The answer was a general denial.
The plaintiffs’ evidence tended most strongly to prove about these facts: Plaintiffs were wholesale liquor dealers in St. Louis, and defendant was a saloon keeper in Roehepoi't, Boone county. Eor some years-prior to February, 1893, the defendant had been ordering liquors from plaintiffs, through their traveling salesmen, and having the same shipped to him via the Wabash railroad to Cólumbia, and then hauled to Rocheport by the hack driver. The saloon was run in the name of the defendant, although, in 1891, defendant, sold out an undivided half interest to Wm. H. Denham.
The plaintiffs object that the circuit court erred in the giving of the first instruction for the defendant, which told the jury that, if they believed from the evidence, that the traveling salesman of plaintiffs sold the whisky sued for to Denham & Head upon their order,
There was no evidence that the plaintiffs sold the whisky to Head & Denham on their credit, or that the plaintiffs looked to them for payment, but, on the contrary, the evidence was that plaintiffs sold the whisky to them on the credit of defendant; that plaintiffs charged the whisky on their books to defendant; made out the bill to him, and sent it with the whisky to him at the place of his residence; not only this, but that, at the expiration of ninety days, the plaintiffs drew their draft on the defendant for the amount of the bill for the whisky. Denham, of the saloon firm of, Head & Denham, testified that he ordered the whisky from plaintiffs to be shipped to defendant in his name, and it was so shipped to be paid for in his name; that the saloon was always run in defendant’s name, and goods from wholesale houses were bought, shipped and paid for in his name. The defendant himself testified that the saloon of Head & Denham was carried on in his name and under his license, and that he consented to it. He knew that this firm were ordering goods in his name and on his credit, and that he made no objection to it.
This instruction was, for these reasons, improper and erroneous, and should not have been given. It is inconceivable how the jury, under the evidence, could have found for the defendant, or, after having done so, why the court did not set it aside. We should not have been inclined to have found fault with the action of the court had it given to the jury a peremptory instruction to find for plaintiffs, since the uncontradicted evidence shows that the plaintiffs sold and delivered the whisky to defendant on his credit. Den-ham & Head, who ordered the whisky, were authorized by defendant to order liquors for their saloon in his
The judgment is reversed and cause remanded.