Sommer v. Bryson

168 Mo. App. 335 | Mo. Ct. App. | 1913

ELLISON, J.

Plaintiff’s action, begun before a justice of the peace, is based on a claim of $59.53 and interest due on a guaranty by defendant of certain merchandise, and interest “on personal account,” all aggregating $66.88. Defendant filed a counterclaim for “ comrüissions ” in the sum of $300 and interest at six per cent from December 15, 1910. On appeal to the circuit court plaintiff was allowed $64.96 and defendant allowed on his counterclaim $326.25. Plaintiff thereupon appealed to this court.

Whatever merit there may have been originally in plaintiff’s objection to defendant’s counterclaim, there is none at this stage, after the facts have .been found against him on a trial properly conducted. There were no instructions asked and the trial was without a jury.

It seems that plaintiff manufactured a product known as “viscol” and that defendant was his exclusive agent for its sale in Kansas City and vicinity, under a contract dated December 1, 1904. Plaintiff claims that this contract was abandoned or superseded by one dated November 10, 1905, and that therefore defendant’s counterclaim based on the first contract should not have been allowed. • But there was evidence tending to show that each party regarded the first contract as in force for several years, after the alleged second contract. Furthermore, there was evidence tending to prove that the paper designated as the second contract was not regarded as a contract signed by both parties, but more in the nature of a bond.

There was ample evidence tending to support the charge made by defendant for commissions. Where no instructions are asked to indicate the trial court’s view of the law, it will be presumed that it took the correct view. [Bethune v. Railroad, 139 Mo. l. c. 580; Gibson v. Bailey Co., 114 Mo. App. 350, 357.]

The objection to testimony was not well taken. Finding no error affecting the merits of the action, the judgment is affirmed.

All concur.