Opinion
No. 27783.
May 16, 1950. Rehearing Denied June 13, 1950.
APPEAL FROM THE ST. LOUIS CIRCUIT COURT, WALDO C. MAYFIELD, J.
Forgery Sindel, St. Louis, for appellant.
Joseph P. Waddock, St. Louis, for respondent.
This is a suit in which the plaintiff claims to have been defrauded of merchandise of the value of $598.74. It was tried once before and the first trial resulted in a verdict for the plaintiff but the trial court held that the verdict was against the weight of the evidence and set it aside. There was an appeal in that case wherein we sustained the trial court and remanded the case for a new trial. On the second trial, with which we are now concerned, a jury was waived and upon trial by the court and at the conclusion of plaintiff's case the court sustained defendant's motion to dismiss. It is from the order dismissing its case that the plaintiff again appeals.
The evidence as stated on the first appeal, Westinghouse Electric Supply Co. v. Binger, Mo.App., 212 S.W.2d 445, was in part as follows:
"The evidence presented on behalf of the plaintiff was to the effect that R. B. Binger came to its office in Oklahoma City representing that he was employed by the Taylor Lumber and Supply Company of Shawnee, Oklahoma. He talked with the field manager of plaintiff company and told him that the Taylor Lumber and Supply Company was going to put in a new department for the sale of electric fixtures and that he, Binger, was to be in charge of it. Binger was known to plaintiff as a poor credit risk and it had at the time he called at the Oklahoma City Office an unpaid judgment against him. He had been referred to that office by plaintiff's office in Tulsa.
"The Taylor Lumber and Supply Company signed a contract with the plaintiff by the terms of which it was appointed plaintiff's agent. This contract had been presented to the Tulsa office and the credit of Taylor Lumber and Supply Company had been investigated and approved. By reason of this plaintiff started shipping merchandise as ordered by Binger to the Taylor Lumber and Supply Company. Most of the merchandise ordered from time to time was sent by truck but some of it was picked up at plaintiff's place of business in Oklahoma City by Binger. Every order was billed to the Taylor Lumber and Supply Company and the delivery tickets were generally signed `Taylor Lumber and Supply Company, R. B. Binger'. However, a few deliveries were signed or initialed for by others. This continued from the time of the first order on July 8, 1940, to December 26, 1940, during which period goods of the value of $1799.02 had been delivered. Certain credits were entered to the account and some payments were made which reduced the amount owing to $838.74. After unsuccessful efforts to collect this balance the plaintiff sued the Taylor Lumber and Supply Company on July 22, 1941, in the District Court of Pottawatomie County, Oklahoma. Binger's deposition, which was taken in that case, was introduced in evidence by the plaintiff in the trial of this case. In it he related that he was not employed by the Taylor Lumber and Supply Company and that the company had not authorized him to make any of the purchases except the original purchase made on July 8, 1940, amounting to $75. He further related in the deposition that the goods he ordered were delivered to the Taylor Lumber and Supply Company where he was allowed to store them. He stated that the company made no profit from the purchases and that the original purchase order and the contract signed by the Taylor Company were given to him as an accommodation and that by personal arrangement with the bookkeeper the goods were received and the freight charges on them were paid and entered as a charge against him on the books. Some of the orders were sent to plaintiff on the Taylor Lumber and Supply Company letterheads but Binger stated that he had done this without its knowledge and that the debt was his own. Plaintiff's credit manager testified that in view of these statements by Binger plaintiff settled with the lumber company for $400 and dismissed its Oklahoma suit. This present suit is for the loss of the balance of $438.74, plus $160 paid to plaintiff's attorney in the suit against Taylor Lumber and Supply Company."
In the first trial Binger's deposition, taken in the case of Westinghouse Electric Supply Co. v. Taylor Lumber and Supply Company in the District Court of Pottawatomie County, was admitted in evidence without objection. It was unsigned and contained a statement by the attorneys for the Westinghouse Company and the Taylor Company that the signing of it was waived. When the deposition was offered as an admission against interest in the case under consideration, the defendant objected on the ground that the deposition was not signed. The court thereupon ruled that it would not be considered as an admission against interest.
As a general rule depositions taken in a case other than the one on trial are admissible for impeachment purposes or for the purpose of showing admissions against interest where the facts testified to arise from the same matters as those being tried. Mertens v. McMahon, Mo.App., 28 S.W.2d 456; Id., 334 Mo. 175, 66 S.W.2d 127, 93 A.L.R. 1285; Parsons v. Parsons, 45 Mo. 265; Vigeant v. Fidelity Nat. Bank Trust Co., 239 Mo.App. 46, 188 S.W.2d 533. However, here the objection goes to the sufficiency of the deposition itself. Binger was not bound by any waiver the attorneys for Westinghouse Company and Taylor Company made for he was not represented by either of them and was not a party to the suit in which the deposition was taken. When a deposition is unsigned, absent a waiver by the party against whom it is sought to be used, it is not admissible in evidence. Gosney v. May Lumber Coal Co., 352 Mo. 693, 179 S.W.2d 51; Davis v. Otto, Mo. App., 206 S.W. 409. The court therefore properly refused to consider the deposition as an admission against interest.
In the first appeal we set forth the essential elements of fraud, one of which is a false representation. The false representation relied upon is that Binger represented that the Taylor Lumber and Supply Company was the purchaser and that he worked for it when as a matter of fact he was making the purchase for himself. The only evidence that the Taylor Lumber and Supply Company was not the purchaser is contained in the unsigned deposition which cannot be considered, and it follows that the plaintiff failed to make a case against the defendant.
The trial court found that the plaintiff did not make its case but stated as its reason for so holding that when plaintiff accepted $400 from the Taylor Lumber and Supply Company and dismissed its suit against it with prejudice it was barred by that action as a matter of law from asserting the claim against Binger. The brief of appellant is addressed largely to the proposition that this holding was erroneous, but since, as pointed out above, there was a failure to prove the fraud upon which the action is bottomed we need not consider this assignment of error as the result must be the same whether the ruling was proper or erroneous.
For the reason we have stated the petition should have been dismissed and it is the recommendation of the Commissioner that the judgment of the trial court be affirmed.
The foregoing opinion of WOLFE, C., is adopted as the opinion of the court.
The judgment of the circuit court is accordingly affirmed.
ANDERSON, P. J., and HUGHES and McCULLEN, JJ., concur.