79 Mo. App. 585 | Mo. Ct. App. | 1899
The petition is in three counts, the first of which is as follows:
“Plaintiff states that the defendant is a corporation duly organized under the laws of the state of Missouri, having its principal business office at Hannibal, in Marion county, Missouri, and that at all of the times mentioned in the several counts in this petition hereinafter set forth the defendant was such corporation and was engaged in the business of manufacturing and dealing in lime, having its works in the county of Lincoln, in the state of Missouri
The second count is for $160.80 worth of wood sold defendant in the year 1895, -with a demand of interest from August 20, 1895. The third one is for $7 for merchandise-sold and delivered by plaintiff to defendant. The answer
Appellant makes no specific assignment of error, but we gather from the brief and the oral argument of .counsel for appellant, that its contentions are, first, that the trial court lost jurisdiction of the cause by the entry of a final judgment
1. “If the jury believe from the evidence that the defendant by its course of dealing at its works at Elmore in
3. “If the plaintiff sold John Lee the wood mentioned in the orders read in evidence on the credit and account of the Empire Lime Company and the said company by its manager, with knowledge of said facts, promised to pay the same when presented by the witness Porter if he did present said order; then such act constituted a ratification of the act of John Lee and the defendant is liable for the payment of the amount of the order or orders presented. The court instructs the jury that the contract read in evidence by the defendant can not be used to affect plaintiff’s right to recover in this case, if he is entitled to recover under the other instructions given, unless plaintiff or his partner Blair had knowledge of the terms of said contract before the sale of the wood.”
“If the jury believe from the evidence that the plaintiff sold John Lee for the defendant the wood mentioned in the first count of plaintiff’s petition and that at the time of said purchase the said John Lee had no authority from said defendants to purchase said wood for them, yet if the jury believe and find from the evidence that said defendant by its agents or managers after said purchase of said wood by said Lee the defendant then knowing that Lee had purchased said wood for defendant received and accepted said wood and used the same for its own benefit, then such receipt, acceptance and use was a ratification of tire contract of said Leo and the verdict will be for the plaintiff for the amount due for said wood at the contract price.”
“Witnesseth, In consideration of the Empire Lime Company, party of the first part, furnishing tools, explosives, horse, carts and harness, John Lee, party of the second part, hereby agrees for the price and sum of eleven (11) cents per barrel for bulk lime and one and one-half (1 1-2) cents additional for nailing and loading barrel lime, and three (3) cents per barrel for making all barrels, if any, and as aforesaid the said John Lee, party of the second part, in consideration of said prices, agrees to do or cause to be done all burning and loading of lime, stripping, quarrying, breaking of rock and putting same in kilns, and all other work necessary to be done to produce a good and merchantable lime.
“It is further agreed that the said John Lee, party of the second part, shall feed and take good care of, at his expense, the horse furnished by said Empire Lime Company, party of the first part, and to use him for no other work than that pertaining to the interest of said Empire Lime Company.
“It is also further agreed by said John Lee, party of the second part, that there being three (3) distinct grades of lime rock in Elmore quarries, to be very particular to grade and assort the rock as per direction of the manager of the said Empire Lime Company, party of the first part, and at all times fill' the kiln and keep same filled with the grade of rock the manager of said Empire Lime Company may order, a failure to comply with this section may create a forfeiture of this contract, the same to be determined by the manager of said Empire Lime Company.
“It is further agreed that said Empire Lime Company, party of the first part, shall receive and pay for at 5 1-2 cents per barrel for all lime rock quarried and ready for the kiln that the manager of said Empire Lime Company may have
“It is further agreed that each and every barrel loaded in bulk shall weigh two hundred (200) pounds and that any shortage in weight of same shall be made good to the aforesaid Empire Lime Company, party of the first part, by the aforesaid John Lee, party of the second part.
“It is further agreed that the running and drawing kiln as to running full or partial capacity, shutting down or drawing out of kiln shall be subject to the order of the manager of said Empire Lime Company.
“It is further agreed that in consideration of the said John Lee, party of the second part, furnishing all wood or fuel necessary for the burning of the lime produced at Elmore at his expense, the said Empire Lime Company, party of the first part, shall pay to the said John Lee, party of the second part, the sum of seven cents (I) for each and every barrel of lime burned, received and sold by said John Lee in addition to amounts hereinbefore mentioned, said seven (I) cents per barrel to apply on indebtedness of said John Lee to said Empire Lime Company, for money received.
“It is further agreed that payments for all lime burned, loaded and sold, shall be made by said Empire Lime Company to said John Lee every second Monday or as soon after as practicable and out of all such payments the first money shall go to the men in the employ of said John Lee, the balance to go to the aforesaid John Lee. A failure at any time to pay the men in the employ of said John Lee the amount due them for labor performed in the production of lime, stripping, quarrying rocks, making barrels, etc., shall cause a forfeiture of this contract and in case of forfeiture or expiration of this contract an invoice shall at once be taken of all rock prepared or lime unsold and after paying the men their dues the balance, if any, shall be paid to the said John Lee.
“It is further agreed that the said John Lee shall remain at or near the works of the said Empire Lime Company, and be in readiness to answer all questions asked of him by letter by said Empire Lime Company’s manager. It is further agreed that this contract shall expire on the 31st day of December, 1891.”
This contract was recorded in the recorder’s office of Lincoln county, but the evidence is that neither Suddarth nor Blair had any knowledge or information of its existence. It is under this contract that defendant seeks to’escape liability for the value of the wood sued for. Lee was a stranger in the community of Elmore before he came there in 1890, and the evidence is that he brought no visible property with him, and that, he is insolvent, and. the plaintiff testified that he would not have sold the wood to Lee. on- his individual account. The contract is not a lease of the plant to Lee, for he did not get the full use and control of it by the terms of the contract; it is not a partnership agreement mter pastes because there is not to be a division of the profits, and Lee agreed to bear all the expenses and all the losses. It is not a hiring of the plant in any sense because the supervision of