The Dayton Folding Box Company v. Danciger

Decision Date04 December 1911
PartiesTHE DAYTON FOLDING BOX COMPANY, Respondent, v. ABRAHAM DANCIGER, JOHN DANCIGER, MOSES DANCIGER, DANIEL DANCIGER, Co-partners doing business under the name of DANCIGER BROTHERS, RED CHIEF DISTILLING COMPANY and HARVEST KING DISTILLING COMPANY, Appellants
CourtKansas Court of Appeals

Appeal from Jackson Circuit Court.--Hon. R. B. Middlebrook, Judge.

AFFIRMED.

Judgment affirmed.

I. J Ringolsky and Sebree, Conrad & Wendorff for appellants.

(1) The second count in the plaintiff's petition is not a count on quantum meruit and a reading of the second count shows that in it the plaintiff charges that it sold and delivered to the defendants a carload of bottle wrappers and pads at and for the price and sum of $ 4.75 per thousand and that the defendants promised and agreed to pay that price for the pads and that they failed and refused to do so. We claim that the allegations contained in the second count in the plaintiffs' petition charges a count on contract and a count based on the agreement and a count in assumpsit for goods sold and delivered and is not a count on a quantum meruit. (2) The statements contained in the plaintiffs' letters written to the defendants about shipments it made to other liquor dealers in Kansas City about the same time the shipments were made to the defendants were incompetent and immaterial and self-serving statements. All the objections made by the defendants to same should have been sustained. The error is prejudicial and is always presumed to be so. Blooms Sons' Co. v. Haas, 130 Mo.App. 122; Knaughton v. Gas Light Co., 123 Mo.App. 192. (3) And this is particularly true where the letters were written after the contract was made between the plaintiff and defendants and as was done in the case at bar. Hammond v Beeson, 112 Mo. 190. (4) A general objection to evidence incompetent for any purpose is sufficient. This is an exception to the general rule, that general objections to the introduction of evidence are insufficient. Bailey v Kansas City, 189 Mo. 503; State v. Prendible, 165 Mo. 329. Exhibits attached to a deposition offered by party to the suit is a part of the deposition, as much as the testimony of the witness himself. Crane Co. v. Neel, 104 Mo.App. 177.

Rosenberger & Reed and George H. English, Jr., for respondent.

(1) The petition is in the approved form for actions of this kind. It is always proper to state the same cause of action in different forms in order to meet the different phases of the proof. Light & Heat Co. v. Doud, 47 Mo.App. 439; Brinkman v. Hunter, 73 Mo. 172; Gaslight Co. v. City, 86 Mo. 495; Mosely v. Railway, 132 Mo.App. 647. (2) The court properly admitted the entire letter complained of. It was not pretended that the letter was incompetent as a whole. If defendants wished to have its effect limited, they should have asked appropriate instructions. Hitt v. Hitt, 150 Mo.App. 631; Garesche v. College, 76 Mo. 332; Stutter v. Raeder, 149 Mo. 297; Dysart v. Forsythe, 84 Mo.App. 190; Soulard v. Clark, 19 Mo. 510. (3) The objections made at the trial to the introduction of the portion of the letter were insufficient and were properly overruled. Latimer v. Railroad, 126 Mo.App. 70; State v. Pyles, 206 Mo. 626. (4) The cross-examination of defendant in respect to the reasons which moved him to reject the goods was proper. Dempsey v. Lawson, 76 Mo.App. 522; Lee v. Conran, 213 Mo. 404; Bank v. Richards, 119 Mo.App. 18; Council v. Railroad, 123 Mo.App. 432; Franklin v. Railroad, 97 Mo.App. 473. (5) The instructions, considered as a whole, were proper and highly favorable to defendants. Barker v. Publishing Co., 152 Mo.App. 706; Springer v. Indianapolis Brg. Co., 126 Ga. 321; Bag Co. v. McDermott, 85 N.Y.S. 787.

OPINION

JOHNSON, J.

This is an action to recover the contract price or value of goods sold and delivered by plaintiff to defendants. In the first count of the petition a contract of sale is alleged and the demand is for the contract price of the goods. The second count pleads a cause of action on quantum meruit. The case was here on a former appeal and was remanded for another trial on a ground not material to the present inquiry (138 Mo.App. 17). We held in our opinion that the second count pleaded a cause on quantum meruit and we adhere to that opinion notwithstanding the argument to the contrary in the briefs of defendants. A second trial in the circuit court resulted in a verdict and judgment for plaintiff on the first count and for defendants on the second. Defendants appealed.

Plaintiff was a manufacturer of straw paper in Dayton, Ohio, and defendants were wholesale liquor dealers in Kansas City, doing what is called a mail order business in the transaction of which they sold liquor in small quantities and shipped it by express and as freight to consumers in the territory tributary to Kansas City. In such shipments the bottles were packed in boxes and each bottle was enclosed in a corrugated straw paper wrapper to prevent breakage in transit. The corrugations of the wrappers served as cushions between the bottles and the wrappers were made of rye, wheat and oats straw. Those made of rye straw were lighter but stronger than those made of either wheat or oats straw. Corrugated pads also were used as cushions in the tops and bottoms of cases. A carload of wrappers, pads and advertising labels pasted on the wrappers sold and delivered by plaintiff to defendants in July, 1905, is the subject of the controversy. The goods were sold f. o. b. cars at Kansas City and were received by defendants who paid the freight charges for the account of plaintiff, hauled the goods to their places of business and immediately began using them. Under date of July 23, 1905, which was two days after the goods were received from the railroad company, but the same day the use of the goods began, defendants wrote plaintiff:

"We just received your car of wrappers, and find that they were printed the wrong way on the manilla sheet. For a left-handed person the wrappers are printed correctly, but, unfortunately, all of our employees are right handed. This mistake makes it not only inconvenient in wrapping bottles, but necessitates a loss of time, which amounts to considerable on a car lot. In wrapping bottles with wrappers printed in the manner you have them, it is necessary for anyone to hold the bottles by the base instead of the neck. We believe we are entitled to an allowance on account of the mistake on your part."

Plaintiff replied to this letter immediately, insisting that the manilla pasters on which the advertisement was printed were properly attached to the wrappers and requesting that samples of the wrappers defendants claimed were wrong be forwarded for inspection. Defendants did not press this claim for an allowance any further but on July 26, telegraphed plaintiff: "Express immediately cut used on our wrappers and oblige." Defendants had sent plaintiff a wood cut of a distillery for use in printing the manilla labels and the telegram referred to that wood cut. On the same day (July 26th) defendants sent plaintiff the following letter:

"We find upon comparing the wrappers you just sent us with those we received in previous shipment, that you have sent us a much inferior wrapper. We cannot use the wrappers. The corrugations are entirely too light and soft and will not protect the bottles in transit. To use the wrappers would not only mean a loss of goods, but a loss of customers as well.

We have weighed the wrappers you just sent us and those shipped in previous lot, and we find a considerable difference in weight. Owing to these facts we will not use the shipment you forwarded, and will hold the entire lot subject to your orders.

We are not looking for an allowance in this matter, and could not afford to accept them even though they were given to us free. We cannot afford to jeopardize our trade in using them. Please give us disposition by wire, as we have no room to store these wrappers. Unless we hear from you quickly we shall store them at your expense.

Under separate cover we are mailing you sample of wrappers for your inspection."

July 28th plaintiff wrote defendants a long letter in refutation of the ground on which defendants based their right to rescind the contract. When plaintiff offered this letter in evidence counsel for defendants, in effect, conceded its relevancy and admissibility but objected to a part of the letter as "incompetent and immaterial" and asked that the objectionable part be withheld from the jury. The part objected to is as follows: "We have been in business a long time and have never had a complaint like this before and have been furnishing these to such people as G. W. Shawhan, H. Rosenberger & Co., Reefer's Green Mountain Distillery, R. Eisen & Co., and in fact, all the large jobbers. Just before your car left we shipped a car to A. Rosenberger of your city, made out of the same material and we had no complaint from him. His goods were made at the same time yours were, run from the same machine and out of the same stock."

The court overruled the objection and allowed plaintiff to read the entire letter to the jury. The instructions afterward requested by defendants did not contain a direction to the jury to disregard the irrelevant matter. Defendants used none of the goods after July 26th, but held them subject to the order of plaintiff, until they were destroyed by a fire that occurred in defendant's business house. There is evidence introduced by defendants tending to show that the goods were so defective in the manner claimed by them that they were worthless for the purposes of their intended use and that defendants rescinded the sale as soon as they discovered the defect...

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