Lammers v. White Sewing Machine Co.

23 Mo. App. 471

• Court: Missouri Court of Appeals
• Decided: January 10, 1887
• Status: Published

Opinion

Ellison, J.

This suit was originally brought in justice5 s court, where the plaintiff below, the appellee here, had judgment.

An appeal was taken to the circuit court, where judgment upon the verdict of the jury, again went for the plaintiff.

The suit was upon the following order:

“Kansas City, Jan. 9, 1884.

“J. Gr. Crompton, Agent White ¡Sewing Machine Co.

“ Please pay to Lamars & Howe, thiity dollars out of our commission account for the month of February 1, 1884.

“Bobinson & Daniels.”

This order was endorsed across the face as follows: “Accepted. J. Gf. Crompton, Manager Betail Dept.”

The evidence showed that, “1st” was interlined in the above order, after the word February, without the knowledge or consent of Crompton, who had accepted it, but with the knowledge of plaintiff.

This was such an alteration as rendered the acceptance void, unless, with knowledge thereof, it was after-wards ratified. Haskell v. Champion, 31 Mo. 186 ; Evans v. Foreman, 60 Mo. 449 ; Moore v. Hutchinson, 69 Mo. 429 ; First Nat. Bk. v. Fricke, 75 Mo. 170; Hord v. Laubman, 79 Mo. 101.

The trial court gave an instruction embodying this rule of law, but defendant claims there was no evidence tending to show a ratification, and, therefore, the demurrer to the testimony should have been granted. The only evidence of ratification was that plaintiff presented the order to Crompton for payment; that Crompton “took it and looked at it, and said it was all right.” That he presented it twice afterwards, Crompton excusing himself from payment by saying his book-keeper had not caught up. And that afterwards Crompton paid five dollars on the order. The witness stated he did not call attention to the alteration, and could not swear that Crompton saw it. Crompton himself testified that he did not notice the alteration. I am of the opinion tin's, was evidence sufficient to go to the jury, for their judgment on the issue of fact it makes up, and they having found for plaintiff, we will not disturb the result. The other points made against the judgment are not sufficient to justify us in its disturbance, and we. therefore, order its affirmance.

All concur.