Twentieth Century Machinery Co. v. Excelsior Springs Mineral Water Co.

• Decision Date: 02 February 1918
• Citation: 200 S.W. 1079,273 Mo. 142
• Parties: TWENTIETH CENTURY MACHINERY COMPANY v. EXCELSIOR SPRINGS MINERAL WATER & BOTTLING COMPANY, Appellant
• Court: Missouri Supreme Court

200 S.W. 1079

273 Mo. 142

TWENTIETH CENTURY MACHINERY COMPANY v. EXCELSIOR SPRINGS MINERAL WATER & BOTTLING COMPANY, Appellant

Supreme Court of Missouri

February 2, 1918

Appeal from Clay Circuit Court. -- Hon. Frank P. Divelbiss, Judge.

Affirmed.

Craven & Moore and Culver & Phillip for appellants.

(1) An offer met by a counter offer is in law rejected in toto and there must be evidence that such offer was renewed and accepted before its terms became binding on the parties making it as a contract. Bronson v. Implement Co., 135 Mo.App. 483; Wire Mfg. Co. v. Broderick, 12 Mo.App. 378; Shickle v. Iron Co., 84 Mo. 161; Cangos v. Mfg. Co., 37 Mo.App. 297; Tufts v. L S. Sams & Sons, 47 Mo.App. 487; Railway v. Joseph Joseph & Bros. Co., 160 Mo.App. 174; McLean v. Gyen Assn., 61 Mo.App. 55; Mfg. Co. v. Broderick, 61 Mo.App. 378 (2) Where an offer is made, and rejected by the parties to whom it is made, then a performance or partial performance of the thing under negotiation, by either party does not show either a renewal of the terms of the offer or an acceptance thereof by the party to whom it was made. Sterling & Sons v. Watson & Bennett Co., 159 N.W 381; Frank v. McGilvray, 107 N.W. 886; Bowen v. Hart, 101 F. 376; Davis v. Thomas, 64 P. 187; Theuber v. Smith, 64 A. (R.I.) 790; Treat v. Ullman, 69 N.Y.S. 974; Sibley Glass Works v. A. S. Barnes Co., 33 N.Y.S. 508, 86 Hun, 374; Jurnes v. Iron Co., 53 Me. 20; Van Valkenburg v. Rogers, 18 Mich. 180. (3) It is elementary that a plaintiff cannot maintain trover unless he has the right of possession. He may have the legal title to the property; but if the defendant is in the rightful possession of it, trover will not lie. Therefore a petition which fails to state directly or inferentially that plaintiff is entitled to the possession of the property sued for states no cause of action. We concede that if the petition stated a cause of action defectively, failure to demur or to object to the introduction of testimony would waive the defect. But if the petition states no cause of action at all, as in the case at bar, the defect can be taken advantage of, even in this court, for the first time. 38 Cyc. 2032.

Richard I. Bruce and Goss & Rooney for respondent.

(1) The court below was correct in its finding for plaintiff; thereby recognizing that the contract entered into between plaintiff and appellant was severable, and, although the contract of sale was not fully completed on the part of plaintiff, subsequent correspondence confirmed the contract in so far as it was applicable to the machine, the judgment for the value of which was found for plaintiff, and as to the terms of payment. 35 Cyc. 5; Mulchaey v. Dieudenne, 103 Minn. 352; Richards v. Shaw, 67 Ill. 222; Roberts v. Beatty, 2 Penr. & W. (Pa.) 63; Sanders v. Short, 86 F. 225, 30 C.C.A. 462. (2) Appellant made full acceptance of such machinery as was actually shipped as a part of the contract by its use of the same. 35 Cyc. 2; Mfg. Co. v. Pastor, 97 N.W. 904; Glass Co. v. Friedlander, 84 Wis. 53. (3) The court below found, by its judgment, in effect, that plaintiff was entitled to the possession of the machine sued for; and any objection to the failure of the petition to so state should have been raised by demurrer before defendant went into trial, or called to the attention of the court by the motion in arrest of judgment. It is here too late to raise the point for the first time. Merrill v. Mason, 159 Mo.App. 605. (4) This case was tried and was acted upon at all times upon the same theory. There was no change in the attitude at any time and both parties treated the matter as though the question now raised by appellant was in the case throughout the course of the trial. 261 Mo. 558.

RAILEY, C. Brown, C., concurs. Graves, C. J., Woodson and Williams, JJ., concur. Blair, J., concurs in separate opinion, in which Walker, J., joins. Bond, J., dissents and concurs.

OPINION

In Banc.

RAILEY C.

This is an action brought in the circuit court of Clay County, Missouri, on May 7, 1913, to recover the value of certain personal property belonging to plaintiff and which, it is alleged, was converted by defendant to its own use. The case was tried before the court, without a jury and without instructions. On December 15, 1913, the trial court found the issues in favor of plaintiff, except as to one item of the value of $ 55, and in due form entered judgment in favor of respondent and against appellant, for $ 1,143.75, and costs. The cause was duly appealed by defendant to the Kansas City Court of Appeals, where it was duly abstracted and briefed by the respective parties. The Court of Appeals affirmed the judgment of the trial court, in an opinion written by Judge Johnson, in which all the members of the court concurred. The case was certified to this court by the Court of Appeals, on account of a conflict between its ruling and that of the St. Louis Court of Appeals in O'Toole v. Lowenstein, 177 Mo.App. 662, 160 S.W. 1016.

The opinion of the Kansas City Court of Appeals, as well as the reason for certifying the case to this court, will be found reported in 171 S.W. 944. We deem it unnecessary to set out the opinion of the Court of Appeals herein, but the same may be considered as published supra, in connection with the supplemental suggestions made by us in respect to the case.

I. Was the trial court justified, under the facts presented in the record before us, in finding that defendant was guilty of converting to its own use, in June, 1909, certain machinery belonging to plaintiff, which the latter had conditionally sold to the Excelsior Springs Bottling Company, or Henry Ettenson, on March 4, 1909? In passing, it should be kept in mind, that the case was submitted to the court without a jury and without instructions. If there was substantial evidence at the trial sustaining the action of the court in finding for the plaintiff, we are bound by its decision in respect to this matter, unless the alleged failure of the petition to state a good cause of action precludes a recovery upon the part of respondent. [Buford v. Moore, 177 S.W. 865, and cases cited; Kille v. Gooch, 184 S.W. 1158; Coulson v. La Plant, 196 S.W. 1144.]

The original agreement between plaintiff and the Excelsior Springs Bottling Company, or Henry Ettenson, dated February 11, 1909, contemplated a sale by plaintiff of four pieces of machinery, of the estimated value of $ 1800. This agreement was reduced to writing and signed by said parties. It contained, among other things, the following:

"Party of the first part retains title of the property until fully paid in cash. This agreement is not binding on the party of the first part until approved by its own office at Milwaukee, Wisconsin."

There was no formal acceptance of the order sent to Ettenson from plaintiff's office at Milwaukee. Two of the machines described in the original agreement were not of plaintiff's manufacture. On March 6, 1909, it wrote Ettenson that it could not furnish the two machines above mentioned.

Upon the cross-examination of M. M. Coakley, by Mr. Moore, counsel for defendant, she testified as follows:

"Q. How did it come the labeler and the Eick washer were not shipped? A. As I recall it, the Excelsior Springs Bottling Company cancelled the order for the Eick washer and the labeler after they placed this contract. . . .

"Q. But at any rate it was agreed on before the articles that you did ship were billed out? A. That we were to accept the cancellation?

"Q. Yes. A. Yes, it would not be anything we would probably dispute."

This testimony, thus brought out by counsel for defendant, was not objected to, nor did defendant's counsel ask to have it withdrawn after showing that the correspondence between the parties was in writing. We do not agree with counsel that any letter was introduced in evidence contradicting this testimony. On the contrary, it is in line with plaintiff's letter of March 6, 1909, to the Excelsior Springs Bottling Company, wherein the latter had been solicited to accept another machine. The testimony of this witness tends to show that the Excelsior Springs Bottling Company, instead of taking another machine, cancelled the order for the labeler and washer formerly ordered. After this, the soaking machine and rinser were delivered to the Excelsior Springs Bottling Company, or Ettenson, and duly installed in their factory. Plaintiff billed the above machinery to Ettenson for $ 962.75, and on June 23, 1909, received from the Excelsior Springs Bottling Company, per Ettenson, a letter containing, among other things, the following:

"We are just in receipt of your statement for $ 962.75 which should be $ 900, as that is our contract price. . . . We will not pay it until the machine has been tested. . . . We refer you to your contract, which says the money is to be paid after the machinery is installed." (Italics ours)

The original agreement of February 11, 1909, contains the following:

"Said party of the second part hereby agrees to pay said party of the first part as the purchase price, the sum of one thousand and eight hundred no/100 . . . dollars, F. O. B. factories. Terms: 1/3 of this said sum to be paid 30 days after receipt of machines. 1/3 -- 30 days -- and the remaining in 60 days thereafter or 2% spot cash 10 days after installation of machines," etc.

Taking into consideration the foregoing facts, as well as other circumstances pointed out in the opinion of the Court of Appeals, we are satisfied that the trial court had before it substantial evidence tending to show that both Ettenson and plaintiff understood, from the dealings between them, that the original agreement was modified as to above items, and that the title to said property actually...