173 Mo. App. 239 | Mo. Ct. App. | 1913
—The plaintiff recovered judgment against the defendant for the sum of $668.40 in a suit instituted in Stone county and afterwards removed on change of venue to Lawrence county. The amount sued for was $677.46, the alleged value
The evidence offered on the part of the plaintiff showed that he was the owner of 5000 ties on the railroad right-of-way in the town of Galena, Mo., which h.e sold to one Wolf, a tie contractor. Wolf, in turn, sold the 5000 ties to the defendant and received the money therefor from the defendant by draft or check when he made the sale and turned over to the defendant the' bill of sale from plaintiff to him. Wolf then paid the plaintiff. Some weeks later, a tie inspector, whose name, age, size, and appearance seem to be unknown to anyone taking part in the trial, according to the record, came to Galena and inspected the 5000 ties. These ties—which were sold by the plaintiff to Wolf and by Wolf to the defendant—were loaded by Wolf’s men at the time the unknown inspector was in Galena. But plaintiff claims that at the time these ties were loaded on the cars, the men continued to load ties belonging to the plaintiff to the number of 1671; he testified that when he saw them loading these additional ties he went to the unknown inspector and talked about stopping the men as he had not received any pay for them, but that the unknown inspector said the Switzer Lumber Company was good for them. On this assurance, without any contract as to the value or price, and evidently believing the unknown inspector, the plaintiff allowed the 1671 ties to be loaded and shipped away, making no further inquiry and requiring no other evidence of the taking than the assurance of the unknown inspector that the SwitzerLumber Company was good for them. Some time after this occurred, Wolf disappeared and has not since been heard of- by the witnesses who testified in this ease; so, also, has the unknown inspector. The ties were loaded several weeks after May 6, 1909. After waiting for some- time the plaintiff wrote a letter to the Switzer Lumber Company, the defendant herein, demanding
“Kansas City, Mo., October 7, 1909.
“W. D. Mathes,
“Galena, Mo.
“Dear Sir:—
‘ ‘Your letter of the 6th is received. It is not clear to me what you are writing about; the only record I have of any transaction with you is a bill of sale signed by you on May 6th, covering 5000 6 X 8. inch ties— 4650 No. at 38c, and 350 No. 2 at 18c, total, $1830, receipt of- which amount you acknowledged in that bill of sale. These ties were then delivered to this company by Mr. E. G. Wolf under his bill of sale to us, and we shipped the ties out. The above is all the information I have regarding any ties bought from you. Your letter is the first news I have had that there was any dispute, but if it refers to the ties above mentioned I do not see that this company has any interest in the matter. .
“Yours truly,
“L. B. Moses, Northern Sales Agent.
“Copy to Mr. E. G. Wolf, Springfield, Mo., with copy
of Mathes’ letter.”
Plaintiff offered testimony to show the acts, declarations and conduct of the unknown inspector in order to prove that he was an agent of the defendant. Plaintiff also offered evidence, which was admitted by the trial court, to show that the shipper or his agent, under the rule of the-railroad company, must sign before the railroad company will bill the cars out, and that this unknown inspector signed the name of the Switzer Lumber Company and took the numbers of the ears, and that the ties viere shipped. The plaintiff testified that the ties were billed out to the Great
The appellant complains, first, that the plaintiff, having brought suit on.the theory of a sale of the ties, could not maintain it on proof of a conversion. This contention is overruled on the principle of law that a tort may be waived and suit brought on an implied promise to pay, in the nature of assumpsit. [Floyd v. Wiley, 1 Mo. 430; Gordon v. Bruner, 49 Mo. 570; Crane v. Murray, 106 Mo. App. 697, 80 S. W. 280; Bliss on Code Pleading, sec. 155.]
Appellant assigns as error the action of the trial court in permitting the contents of the bills of lading to be shown by the oral testimony of the man who was the agent of the railroad company at the time the cars are alleged to have been shipped out, and also the action of the .trial court in permitting this agent to testify concerning the contents of the printed rule of the railroad company to the effect that the company requires the shipper or his agent to sign before the cars are shipped.
This contention is well made for the reason that there is no showing whatever that the bills of lading
Appellant insists that there is no competent evidence in this record showing that the unknown inspector was its agent, or that there was anyone representing it at the time the shipment was made who could bind it for the 1671 ties, or that it ever received the 1671 ties or any proceeds or benefits from them, or that it in any way ratified the acts of the person or persons who converted these ties that belonged to the plaintiff.
All the testimony concerning the acts, declarations and conduct of the unknown inspector was properly objected to and was incompetent until some outside proof of the agency should be heard. The law is well settled that the relation of principal and agent cannot be established by the acts, declarations and conduct of 'the alleged agent, and until the relation is shown by other evidence, the statements, declarations and conduct of the alleged agent are wholly incompetent when there is no proof that the alleged principal was cognizant of the same or there is a failure of proof of any ratification of the alleged principal. [The Salmon Falls Bank v. Leyser, 116 Mo. 51, 68, 22 S. W. 504; Carp v. Queen Insurance Co., 203 Mo. l. c. 333, 334, 101 S. W. 78; The Waverly Timber & Iron Co. v. The St. Louis Cooperage Co., 112 Mo. 383, 20 S. W. 566.]
Respondent relies on the letter of the appellant of October 7, 1909,. which respondent introduced in evi
It is shown that a copy of the letter written by the appellant to the respondent on October 7,' 1909, together with a copy of the letter which appellant had previously received from respondent, was sent by
The record wholly fails to establish an agency or ratification. Entertaining this view, we must hold that the trial court erred in admitting the testimony herein alluded to, and in refusing to give defendant’s peremptory instruction. The judgment is reversed and the cause remanded for a new trial.