Phœnix Cotton Oil Co. v. Morrowstout Wholesale Grocer Co.

• Citation: 236 S.W. 415
• Decision Date: 14 January 1922
• Docket Number: No. 2977.,2977.
• Court: Court of Appeal of Missouri (US)
• Parties: PHŒNIX COTTON OIL CO. v. MORROWSTOUT WHOLESALE GROCER CO.

236 S.W. 415

PHŒNIX COTTON OIL CO. v. MORROWSTOUT WHOLESALE GROCER CO.

No. 2977.

Springfield Court of Appeals. Missouri.

January 14, 1922.

Appeal from Circuit Court, Pemiscot County; Sterling H. McCarty, Judge.

Action by the Phoenix Cotton Oil Company against the Morrow-Stout Wholesale Grocer Company. Judgment for plaintiff, and defendant appeals. Affirmed.

Hall & Billings, of Kennett, and Ward & Reeves, of Caruthersville, for appellant. McKay & Medling, of Caruthersville, for respondent.

COX, P. J.

Action on account for goods sold and delivered. Trial by jury, verdict and judgment for plaintiff, and defendant appealed.

The petition is in the usual form. The answer admits the purchase of the goods, and then alleges that the plaintiff represented that the goods were wholesome, salable, merchantable, and fit for food, and agreed to advertise, make, and establish a market for the goods; that the goods when delivered had deteriorated, and were unwholesome and unfit for human consumption, and unsalable and unmerchantable, and defendant notified plaintiff of their condition and offered to return them, and that plaintiff had failed to advertise, make, develop, and establish a market for the aforesaid goods according to its contract, but had breached the same in respect to the performance of said condition on their part to be performed.

The evidence shows that plaintiff is a manufacturer of a lard substitute from cotton seed oil at Memphis, Tenn. Defendant is a wholesale grocer at Kennett, Mo. W. D. Jones, a salesman for plaintiff, took an order from defendant on March 2, 1920, for 10,000 pounds of plaintiff's product. This order was signed by defendant, and had the following provisions in it:

"Prices guaranteed against decline up to shipping date."

"Bought from the Phoenix Cotton Oil Company the foregoing quantity of goods at the price in the packages and on the terms and conditions expressed above in writing."!

Soon after this order was taken there was a slight decline in the price of the goods, and on April 23d, the defendant gave another order which included the first, and on the same terms, but changed the amount from 10,000 pounds to 30,000 pounds, which made a carload. This order was shipped, but on account of a wreck in transit the car was broken, and a considerable quantity of the lard substitute spilled. When this car arrived, defendant refused to accept it until the loss was adjusted, which was' done as soon as convenient, and the goods then received.

Defendant contended that Mr. Jones, the agent of plaintiff from whom the goods were purchased, had agreed that plaintiff would send a man to assist defendant in making sales of the goods, and had also represented that the goods would stand up indefinitely. Mr. Jones testified that he said it would stand up as long as any lard. Mr. Jones was sent to assist defendant in making sales of the goods, and remained about two weeks. They disagree as to why he did not stay longer. Jones said that Mr. Stout, for defendant, informed him that he had done all he could, and for him to wait until after the watermelon season was over and business should get better, then to come back, and he agreed to come back any time they would let him know. The evidence for defendant was that Jones said to Mr. Stout that he had done all he could, and Mr. Stout replied that he guessed he had.

As to the condition of the lard, the evidence of defendant shows that the lard first sold was satisfactory, but after about a month it began to be returned by the parties to whom it had been sold on account of its condition; that defendant sold about one-half of the shipment, and about half of that sold was returned as unfit for use. One can that had been sold by defendant was produced in court, and was shown to be unfit for use, and Mr. Morrow, who seems to have been in active charge of the matter for defendant, testified that all of the lard that he had seen was in the same condition. Some was in tierces, and was not examined. There was no evidence that any of the lard that was spilled in the wreck was bad at that time.

On the answer and the evidence as to the agreement of plaintiff to send a man to assist defendant in selling the goods, it is clear that defendant cannot defend against the account of plaintiff on that ground. That part of the contract was not binding on plaintiff, because the order for the goods recited that the goods were purchased on the conditions therein provided, and the order made no provision for plaintiff to assist defendant in selling the goods. That promise on part of the salesman, then, became a mere gratuity, but, if we treat it as binding, defendant is in no better position in this case, for it is conceded that that part of the agreement was at least partially, if not entirely, complied with, and no damages for failure to fully comply with it was either alleged or proven, nor was any offer to rescind on that ground made. Defendant's testimony only tends to show that the party sent to help to sell the goods did not stay as long as he ought to, but it also tends to show that defendant consented for him to return. This evidence alone would justify the court in refusing instruction No. 5 asked by defendant, so we need not discuss that instruction further.

[2] Error is assigned in the admission of testimony on the part of plaintiff. A witness for plaintiff in describing the manner of manufacturing the lard substitute sold by plaintiff stated that it was made of cotton seed oil; that the seeds were pressed and the oil extracted, and then the oil was refined. This was followed by the question, "Does that leave it absolutely...