Diebold Safe & Lock Co. v. Dunnegan

BEOADDTJS, P. J. This is an action by the plaintiff corporation against defendants, J. H. Baldwin, J. P. Wakefield and J. C. Franklin, judges of the county court of Polk county, and against defendant Dunnegan, county commissioner on the construction of a courthouse at Boliver, a county seat, and to recover the possession of two vault doors which were to be used in the construction of said courthouse. The Atlas Construction Company, a partnership consisting of Charles and Samuel Grob, on its application was made party defendant and filed its answer alleging that it was the owner and in the possession of the doors. The cause was tried before the court, which rendered judgment dismissing the action as to Baldwin, Wakefield, Franklin and Dunnegan, and found the issues in favor of the Atlas Construction Co. [140] On tbe 12th of April, 1908, the plaintiff entered into a contract with J. M. Oritchfield of St. Louis, making him its special agent to sell its manufactured goods in the States of Kansas and Missouri. By this contract, Oritchfield agreed to pay plaintiff for all goods shipped' direct from the factory, and goods shipped direct to the St. Louis Safe & Desk Company to be paid for by a sight draft made upon it through the Broadway Savings Trust Company of St. Louis. And it was provided that, “contracts for special work, such as vault linings, etc., will be taken in the name of the Diebold Safe & Lock Company and the original contract forwarded to it with the right on its part to make collection for the same, if in its judgment it thinks proper/’ . On May 7, 1906, an order for the doors in suit was • made upon the plaintiff with direction to ship to R. G. Kirsh, Bolivar, Mo., “and lock instruction and invoice to us here. Draw on us through the Broadway Savings Trust Company, this city. (Signed) St. Louis Safe and Desk Company., J. M. Oritchfield.” The St. Louis Safe & Desk Company went into the hands of a receiver, after which by an agreement between plaintiff and Gritchfield the former was to draw through the Missouri Lincoln Trust Company for any material shipped to him. The doors in question were shipped to Bolivar on December 3, 1906, and were billed to the order of the plaintiff endorsed, “Notify R. G. Kirsh.” It appears that Kirsh who had charge of the work had been supplanted by defendant Dunnegan, who then had supervision of the work on the courthouse. The bill of lading, with sight draft attached, was sent to the Missouri Lincoln Trust Company, upon which under the agreement with Oritchfield plaintiff was to draw for payment fot any material shipped to him. When the doors arrived at Bolivar, the station agent of the railroad carrier there, knowing that Kirsh had been [141] discharged, notified defendant Dnnnegan of the arrival. The railroad at the request of Dnnnegan had the car containing the doors placed on a side track and Mr. Dunnegan or a man by the name of Hunt, who was acting in some capacity. for the Atlas Construction Company, with Dnnnegan had the doors unloaded in an old canning factory controlled by one, Viles. The station agent testified that Dnnnegan told him that he would guarantee the payment of the sight draft. The doors remained in the place of deposit until replev-ined by plaintiff. The defendant partnership, the Atlas Construction Company, paid the money for the doors to Critchfield upon his representations that he was plaintiff’s agent. The court found that the defendants composing the county court and Dunnegan, the county commissioner, all of whom disclaimed ownership and possession, were not in the possession of the property at the time of the issuance and service of the writ and found that such possession was in the Atlas Construction Company; and, as that was a question of fact and there was an abundance of evidence to support the finding, we are precluded from going into that question. Therefore, the question is whether under the evidence the Atlas Construction Company was in such possession lawfully as against the plaintiff, which is a question of both law and fact and the determination of which depends upon whether Critchfield was the plaintiff’s agent with authority to receive payment for the doors. Under the contract, plaintiff constituted Critch-field its agent for the sale of its goods, and that he in fact made the sale to the Atlas Construction Company is admitted. The original contract for the doors was made in pursuance of the contract of agency through the St. Louis Safe & Desk Company, by which sight draft was to be drawn upon it through the Broad [142] way Sayings Trust Company. After the latter bad gone into the hands of the receiver, by mutual agreement of the parties Critchfield was substitutéd as the agent making the order. This change did not modify or alter the relation of Critchfield to the plaintiff as its agent. While the contract provides that Critchfield shall pay to plaintiff, the price of goods sold by him, its real purpose and effect was to make him liable to plaintiff for the proceeds of such sales. The price of goods so sold by the agent, we infer from the contract, was charged to him by plaintiff in the usual course of business, or he would not be liable for them. If, under a proper construction of the contract, he is to be held liable for the price of the good? sold by him, he was of necessity authorized to collect payment for them when delivered to the purchaser. The power to collect was incidental to his agency in order to effectuate its main purpose, for how else could he make payments for the goods sold by him unless he had the authority to collect? [Mechem on Agency, secs. 280-2.] And the fact that a sight draft accompanied the bill of lading does not affect the question, if we are right in our conclusion that the agent had the authority to collect. But we think the following provision in the contract is decisive of the question, “Contracts for special work, such as vault linings, etc., will be taken in the name of the Diebold Safe & Lock Company and the original contract forwarded to it with the right on its part to make collections for the same, if in its judgment it thinks best to do so.” This shows that it was -the intention of the parties that Critchfield should not only sell and collect the price for which goods were sold in all instances but even when such sales should be made in the name of the plaintiff, except where plaintiff thought best to make collections itself. [143] Waiving all other alleged errors, what we have said is conclusive of the issues raised on the appeal. Affirmed. All concur.