Gilliam ex rel. A. E. Anderson & Co. v. Globe Tailoring Co.

BROADDUS, P. J.

This is a suit on an indemnifying bond. The case is as follows: Prior to November 9, 1907, one Frank E. Breslin was engaged in the tailoring business in Jefferson City. A. E. Anderson and Company was a wholesale tailoring establishment doing-business in Chicago. They did business in the following manner: They furnished to him different samples of goods suitable for clothing. When a customer came to him for a suit of clothes, such customer would make his selections from the samples on hand. .The sample selected would then be sent to plaintiffs Anderson and Company and the. suit would be made up from this sample and similar samples which plaintiffs had with other tailors operating in the same way. After the suit of clothes was made up it would be returned to Breslin, who would deliver to the person ordering it and he would collect the amount due from the customer. On the 9th day of November, 1907, the defendant The Globe Tailoring Company, a partnei'ship doing business in Cincinnati, recovered judgment in the sum, of $183.40, against Breslin in a justice’s court. Execution was issued on this judgment and placed in the hands of W. W. Gilliam, constable, who seized thereunder a lot of said samples in the possession of Breslin. The constable-having been notified that the goods belonged to the plaintiff, demanded of The Globe Tailoring Company an indemnifying bond, which they executed with the defendant, The United States Fidelity and Guaranty Company as security. Some of the goods were sold and after satisfying the execution and costs a surplus of $80.09 was left in the hands of the constable which he paid over to the plaintiffs.

The plaintiffs recovered the value of their goods taken under the execution less the amount of' said surplus in the sum of $390. The defendant filed a motion for rehearing, which the court sustained, on the ground of error in giving instructions on the measure of damages, and plaintiff appealed.

The defendant moves to dismiss the appeal on the ground that there was no such suit pending and no trial had of a case styled W. W. Gilliam, Constable, to the use of A. E. Anderson and Company v. The Globe Tailoring Company et al.

The suit wras brought in the name of A. E. Anderson and Company, but during the trial the plaintiff offered the following amendment: “W. W. Gilliam states that he is and was the constable of Jefferson township, Cole county, Missouri, on the 6th day of December, 1907, and at the relation of and the use of A. E. Anderson and Company doing business under the name of A. E. Anderson and Company in the city of Chicago and for cause of action, states,” etc. Defendants’ counsel objected to the proposed amendment for several reasons which are not necessary to be stated, whereupon the court said: “Objection overruled. Go ahead.” To which ruling and decision the defendant excepted. There is no order in the record showing a filing of the amendment and none changing the style of the case. The affidavit for appeal and the appeal is taken in case as now styled.

We do not think the appeal should be dismissed for the reasons assigned. It is true there was no formal order for filing the amendment, but it is safe to say that the parties were all acting under the impression that the amendment had been made and that an order to that effect had been entered of record. The amendment only changed the form of the action, and did not in any manner affect the rights of the parties. The objection is purely technical and ought to be disregarded.

The court on the measure of damages instructed the jury if they found for the plaintiff they would assess the .value of the goods, as of the time of the seizure with six per cent interest, less the credit of $39.40. We do not find any fault with the instruction. Ii is held to be correct in such cases. [The State to use of Monk v. Bacon, 24 Mo. App. 403; Schnabel v. Thomas, 98 Mo. App. 197.] The verdict was for the right party and ought to stand. Reversed and remanded with directions to restore verdict and enter judgment for the amount therein in favor of plaintiff.

All concur.