Ruckman v. R. C. Stone Milling Co., 139 Mo. App. 256

Ruckman v. R. C. Stone Milling Co.

139 Mo. App. 256 | Mo. Ct. App. | 1909

COX, J. —

The questions to be determined here are as to whether the action of the trial court in excluding the contract offered as evidence by the plaintiff, and the letter which purported to discharge plaintiff from his employment, was correct. As to the letters of discharge, we are of the opinion that its exclusion was erroneous. Plaintiff had testified that McPháyden’s work as superintendent ceased on November 5th. and that after that, *259McDonald, who had written this letter, had charge of affairs at the mill, and, while there was also testimony by witness Trogden, who was secretary of defendant company, that McPhayden was succeeded as superintendent by one Ward, and that McDonald was not superintendent, but only sales agent for the company, yet, we think that the testimony of plaintiff to the effect that McDonald had succeeded McPhayden in the performance of the duties at the mill which McPhayden had formerly performed, made a prima facie showing of authority in McDonald to act for the defendant; hence, instead of excluding this letter, it should have been admitted: Then, if defendant wished to contend that McDonald had no authority to act for the defendant in discharging the plaintiff he could have offered his testimony on that question, and the entire question could have been submitted to the triers of the fact. This error, however, should not result in reversing the judgment if the action of the court in excluding the contract was correct, for without the contract in evidence, plaintiff’s case must fail. It will be noticed that this contract purports on its face to have been executed by both parties, plaintiff having signed for himself; J. A. McPhayden having signed for defendant. This being true, the statute (R. S. 1899, sec. 746), requiring a denial of the execution of a contract alleged to have been executed by the pleader to be under oath, does not apply. Kelley v. Thuey, 143 Mo. 422, l. c. 436, and the general denial filed by defendant raised the issue of the execution of the contract, and it then devolved upon the plaintiff to prove its execution by the defendant before the contract could be admitted in evidence. There was ample proof that McPhayden had authority to sign for the defendant, for the evidence made it clear that as superintendent of the mil] it was a part of his duty to employ men, and that he also had authority to discharge them. This was not enough. Plaintiff should have gone a step farther, and shown in some way, that McPhayden did sign *260the contract. Not having done this, the trial court was right in excluding it, and as this contract was the basis of the plaintiff’s cause of action, he could not make out a casé without it. It, therefore, follows that notwithstanding the error of the court in excluding the letter of McDonald showing the discharge of plaintiff, the action of the court in refusing to set aside the non-suit was right which must result in an affirmance of the judgment, and it is so ordered.

All concur.