England v. Mortland

• Decision Date: 10 April 1877
• Citation: 3 Mo.App. 490
• Parties: BENJAMIN F. ENGLAND et al., Respondents, v. JOHN MORTLAND, Appellant.
• Court: Missouri Court of Appeals

3 Mo.App. 490

BENJAMIN F. ENGLAND et al., Respondents,

v.JOHN MORTLAND, Appellant.

St. Louis Court of Appeals, Missouri.

Apr. 10, 1877.

1. To entitle one to recover the contract price of goods alleged to have been sold and delivered, there must, at least, be shown an intention on his part to relinquish all further claim as owner, and an intention on the part of defendant to assume ownership with all its liabilities.

2. Where one sells wood which is in a general pile, not measured, identified, and set apart, but where the vendor merely notifies the vendee that the wood is at the place of delivery, but continues to sell wood from the same general pile to other parties, that is not such a delivery as will enable him to recover the contract price, although the vendee may have taken and paid for a part of the wood.

APPEAL from St. Louis Circuit Court.

Reversed and remanded.

J. M. & C. H. Krum, for appellant, cited: Clark to use v. Cusen, 3 Head, 55; Dunlap v. Berry, 5 Ill. 327; Wilkinson v. Holiday, 33 Mich. 386; Cunningham v. Ashbrook, 20 Mo. 553; Bersch v. Sander, 37 Mo. 109; Ober v. Carson, 62 Mo. 209, 213.

Thos. C. Fletcher, for respondents, cited: Morrison v. Dingley, 63 Me. 556; Riddle v. Varnum, 20 Pick. 283; Hemming v. Powell, 33 Mo. 468; Story on Con. 875, sec. 801; Gaff v. Hoymer, 59 Mo. 345; Gaff v. Fitch, 58 Ill. 375; Bass et al. v. Walsh, 39 Mo. 193; Hayden v. Demits, 53 N. Y. 426; Glasgow v. Nicholson, 25 Mo. 29; Wallace v. Breed, 13 East, 525; 1 Pars. on Con., 5th ed., 525, 534; Williams v. Evans, 39 Mo. 204.

HAYDEN, J., delivered the opinion of the court.

This was an action to recover the price of certain wood claimed by plaintiffs to have been sold and delivered to the defendant. The petition alleged that the plaintiffs, in December, 1873, sold and afterwards delivered to defendant, at Rush Tower, Missouri, 1,000 cords of oak and hickory wood at $3 a cord, and 600 cords of mixed and larger cottonwood at $2 a cord, making $4,200, which defendant promised to pay; that, of this, $2,502.38 were paid, and that defendant was entitled to a further credit of $1,053.45 for the proceeds of a part of the wood which came into defendant's hands; that $644.17 remained due.

The answer, after specifically denying the allegations as to the sale and delivery, set up a contract by which plaintiffs agreed to deliver to defendant 1,000 cords of oak and hickory wood at $3 a cord, of a specified quality, and sufficiently good to enable defendant to fill a contract which he had, of the terms of which plaintiffs were informed. The answer then admitted that in May and July, 1874, plaintiffs delivered to defendant 834 cords of wood of inferior quality, and not of the kind agreed upon, for which the defendant paid at the contract rate, notifying the plaintiffs he would not receive or pay for the rest. As to the 600 cords of cottonwood, the answer alleged that the contract was that defendant was not to take it unless he should be able to find a buyer for it at $2 a cord; that after due efforts he could find no buyer at that price, and so notified plaintiffs; that defendant never received or used any of it. The reply put in issue the affirmative matter of the answer.

The testimony of the plaintiffs tended to show that they sold to defendant 1,000 cords of oak and hickory wood at $3 a cord, and 600 cords of mixed and cotton-wood at $2 a cord; that by the contract the wood was to be delivered on the Mississippi River bank, at Rush Tower; that enough oak and hickory wood was placed on the river-bank to cover the contract; and that the defendant took part of the wood and made payments on account of it, and was notified that the rest was on the river-bank; that, as defendant did not take it, the rest of the oak and hickory wood was sold by plaintiffs to one Welge; that when the contract was made the defendant was told that the large cotton-wood would be put on the bank of the slough, and did not object; that if defendant took rotten wood it was his fault, as there was plenty of good wood; that defendant agreed to take the wood unconditionally, and that wood fell in price after the contract was made. It appeared from the testimony of one of the plaintiffs that no wood was especially set apart for the defendant, or on account of this contract; that all the oak and hickory wood owned by the plaintiffs was placed in one general pile on the river-bank; that any one who wanted wood bought and took it from this pile; that steamboats landing at this place, or near, took wood from the pile; that the cotton-wood, amounting to 240 cords, was piled on the mainland, on the bank of a slough which was navigable only in high water; that the mixed wood, about 300 cords, was placed about half a mile below Rush Tower. The plaintiffs exhibited an account corresponding to the items in their petition. At the close of their case a demurrer to the evidence was overruled. There was evidence for defendant tending to show that when he contracted for the wood he told plaintiffs he would take their oak and hickory wood if it was good enough to fill his contract with Welge, and plaintiffs said the wood would do; that, as to the mixed and cotton-wood, defendant told plaintiffs he would take it at $2 a cord if he could find a purchaser, and declined to give a written contract; that defendant had tried, without success, to find a buyer. There was other evidence tending to show a conditional contract. There was evidence to the effect that the agents of defendant who went to get the wood found twenty-two and a half cords of mixed wood so piled that they were...