The Atkins Brothers Company v. Southern Grain Company

• Citation: 95 S.W. 949,119 Mo.App. 119
• Parties: THE ATKINS BROTHERS COMPANY, Appellant, v. SOUTHERN GRAIN COMPANY, Respondent
• Decision Date: 18 June 1906
• Court: Court of Appeals of Kansas

95 S.W. 949

119 Mo.App. 119

THE ATKINS BROTHERS COMPANY, Appellant, v. SOUTHERN GRAIN COMPANY, Respondent

Court of Appeals of Missouri, Kansas City

June 18, 1906

Appeal from Jackson Circuit Court.--Hon. Hermann Brumback, Judge.

REVERSED AND REMANDED.

Judgment reversed and cause remanded.

Botsford Deatherage & Young and Goodwin Creason for appellant.

(1) There was an implied warranty that the corn was merchantable and reasonably fit for the uses to which it was ordinarily put. Benjamin on Sales (3 Amer. Ed. by Bennett), sec. 345; 2 Mechem on Sales, sec. 1340. Brewing Co. v. McEnroe, 80 Mo.App. 429; Babcock v. Trice, 18 Ill. 420; Brown v. Emersin, 66 Mo.App. 63; Grain Co. v Benbaker, 89 Mo.App. 1; Haner v. Churchill, 29 Mo.App. 676. (2) It makes no difference if plaintiff did accept the corn before inspection of the same. The only office of inspection in executory sales is to determine in what respect and how far the commodity complies with the contract, expressed or implied. Scheiber v Anderson, 101 Fed.763; 2 Mechem on Sales, sec. 1340; Lee v. Sadderly Co., 38 Mo.App. 201; Cathings v. Hocke, 15 Mo.App. 51; Moore v. Emerson, 63 Mo.App. 137; Electric Light Co. v. Lamar, 140 Mo. 145. (3) Plaintiff did not lose its right of action by exercising ownership after discovering the corn was defective. It still had the right to retain the corn after discovering it was defective, and suing for the difference in its value as it actually was when it reached Shreveport, and its value at Shreveport had it been merchantable corn. Brewing Ass'n v. McEnroe, 80 Mo.App. 431; Martin v. Maxwell, 18 Mo.App. 176; Moore v. Emerson, 63 Mo.App. 137; 2 Mechem on Sales, sec. 1390; Long v. Armsby, 43 Mo.App. 253; Fairbanks, Morse & Co. v. Baskett, 98 Mo.App. 52; Electric Light Co. v. Cleary, 77 Mo. 298.

M. F. Ringolsky and I. J. Ringolsky for respondent.

(1) This corn, loaded and shipped at Harwood, Missouri, to appellants was good, merchantable corn and in good shipping condition. It was never seen or grown by respondent. And respondent did not know any use for which appellant purchased same. It is admitted respondent made no misrepresentations and practiced no fraud on appellants. (2) Appellants had every opportunity and privilege to inspect the corn before paying draft and taking up bill of lading as per contract and directions of Mr. Landa, but neglected and refused to do so and hence the rule caveat emptor applies and bars appellants' right to recover on any implied warranty. Muhr v. Eagle, 7 Mo.App. 590; Buruby v. Bollett, 16 M. & W. 644; Society v. Lawrence, 4 Cowen 440; Holden v. Dakin, 4 John. 421; Welsh v. Carter, 1 Wend. 185; Thompson v. Ashton, 14 John. 316; Lee v. Saddle Co., 38 Mo. 200-6; Moore v. Koger, 113 Mo.App. 423; Hyatt v. Boyle, 5 G. & J. (Md.), 120; Storage Co. v. Wood, 99 Mich. 269; Fruit Co. v. Talifero, 63 S.W. 656; Hoffman v. Vates, 77 Ga. 701; Byrne v. Jansen, 50 Cal. 624; Mixle v. Cohen, 11 Met. (Mass.) 559; Humphreys v. Comlive, 8 Blackford (Ind.) 516; Kohn v. Lindley, 39 Ill. 195; Court v. Snyder, 2 Ind.App. 440; Seller v. Stevenson, 163 Mass. 262; Lumber Co. v. Co., 91 Wis. 667; Hock v. Black, 29 W.Va. 244; Hargonis v. Stone, 5 N.Y. 84. (3) It was incidental to the contract as well as the express directions of Mr. Landa that appellant could inspect the corn before draft was paid, and proof of any custom or usage inconsistent with his contract, and Mr. Landa's directions, was incompetent and contrary to the wise rule of law governing sales of personal property. Barnard v. Kellog, 77 U.S. S.Ct. 395; Bank v. Burkhardt, 100 U.S. 692; Grace v. Ins. Co., 109 U.S. 283; Boorman v. Jenkins, 12 Wend. (N. Y.) 506. (4) Mr. Landa did not contend that appellant lost his right of action by exercising ownership over the car of corn; but maintains that appellant had no cause of action against Mr. Landa on the terms and conditions of his contract. (5) Appellant accepted said corn without inspection and resold the same to parties south of Shreveport and shipped it on a different road; hence their conversion and appropriation and diverting of said corn constituted a waiver to all their rights as against Mr. Landa. Growers v. Gorman, 76 Mo.App. 193; Lynn v. McDonald, 51 Mich. 443; Haas v. Nomemacker, 21 Minn. 486; Decker v. Lombard, 7 Daly 19; Maxwell v. Lee, 34 Minn. 486; Kellog v. Denslow, 14 Crom. 411; Johnson v. Vaugh, 40 Ia. 421; Studor v. Blestein, 115 N.Y. 316; Pierson v. Crooks, 115 N.Y. 539; Iron Co. v. Pope, 108 N.Y. 232; Williams v. Robb, 104 Mich. 242; Underwood v. Caldwell, 102 Ga. 16; Thompson v. Libby, 35 Minn. 443; Lee v. Bangs, 43 Minn. 23; Paving Co. v. Gorman, 103 Mich. 403; Parks v. O'Conner, 70 Tex. 377; Guernsey v. Lumber Co., 87 Cal. 249.

OPINION

ELLISON, J.

--Plaintiff resides at Shreveport, Louisiana, and defendant at Kansas City, Missouri, and both were dealers in grain. Plaintiff ordered of defendant a carload of corn, the agreement therefor being evidenced by the following letter written and sent to the former by the latter, viz.:

"We have booked your order as per your wire of today for one car of corn in shuck at 47 1-2c per bu., delivered at Shreveport, our certificate of weight to be accepted as final. The corn will be loaded and gotten to destination as promptly as railroad facilities will permit, but with the understanding that as we do not control the M. K. & T. road no cancellation is permitted if delayed in transit, although we will follow with tracer and do what we can to get to destination as quickly as possible. We thank you for the order and ask a continuance of your valued patronage."

The corn was shipped on the 18th of December and arrived at Shreveport on the 23rd or 24th. Plaintiff paid for the corn on the 24th by paying the draft attached to the bill of lading. They did not inspect it at Shreveport, though by the terms of the bill of lading they had a right to do so, but reshipped in same car to Lake End, a point fifty-six miles further on, where it arrived on the 26th. It was then found to be wet, sour, rotten, and worthless. Plaintiff refused to take it. The railway company sold it for a nominal sum.

The foregoing contract was what is known as an executory contract for sale of chattels to be procured and there was, therefore, an implied warranty from defendant to plaintiff that the corn would be sound and merchantable when it arrived at Shreveport, the place of delivery where the sale was to be completed. [2 Mechem on Sales, sec. 1340; Babcock v. Trice, 18 Ill. 420; Howard v. Hoey, 23 Wend. 350; Murchie v. Cornell, 155 Mass. 60, 29 N.E. 207; Rodgers v. Niles, 11 Ohio St. 48.]

There was evidence on part of defendant tending to show that the corn was sound and merchantable when shipped on the 18th of December. There was also evidence on part of plaintiff tending to show that it was not sound and was not fit for use when it arrived at Shreveport. We consider that the evidence tending to show that the corn was in good condition when it left point of shipment tended to show, by reasonable inference, that it arrived at Shreveport in like good condition six days later; there being nothing to show that it was exposed to injurious influences on the way. So, on the other hand, we consider the evidence tending to show that it arrived at Shreveport in bad condition, if there was any, tends to show that it left point of shipment in bad condition. But it is part of defendant's contention that there was no evidence to show it arrived in Shreveport in bad condition. On the ground of the following consideration we think there was such evidence. It was shown that on arrival at Lake End, only fifty-six miles away, it was in the unmerchantable condition stated and that place was only a half day's journey by railroad. So, allowing that it arrived at Shreveport on Saturday, the 24th, and was shipped out on Monday, the 26th, arriving at Lake End the same day, there was only the short intervening time of forty-eight hours. It is not reasonable to suppose that corn which was in sound condition and merchantable quality in Shreveport would be wet, soured and rotten two days afterwards at Lake End, the weather being good and the corn unexposed. If it was in that condition, then almost certainly it was not sound on arrival at Shreveport.

The foregoing was the state of the evidence and under such evidence the court amended plaintiff's instruction over their objection so that it read as follows: "The court instructs the jury that under the contract between plaintiff and defendant for the purchase and sale of the corn referred to in the evidence there was an implied warranty by and from defendant to plaintiff that said corn would be delivered to plaintiff in a reasonably fit condition for some purpose for which it is ordinarily used, or that it would be merchantable, and if you find from the evidence that said corn was not in a reasonably fit condition for some purpose for which it is ordinarily used, and not merchantable, then your verdict must be for the plaintiff. By merchantable as used in this instruction is meant that the corn would be of fair average quality or goodness according to its kind, free from remarkable defects and as such salable in the market at average or ordinary price."

The instruction as offered by plaintiff required that the corn should have been "in a reasonably fit condition for the purpose or purposes for which it is ordinarily used and that it would be merchantable." The change to "some" purpose was improper. So we think it was improper to substitute "or," for "and." The plaintiff was entitled to corn that could be put to the ordinary purposes for which corn is used, and also be merchantable. The buyer, of course, has a right to use the corn himself and therefore it should be...