Bagnall v. Frank Fehr Brewing Co.

• Decision Date: 10 May 1920
• Citation: 221 S.W. 793,203 Mo.App. 635
• Parties: J. H. BAGNALL, Respondent, v. FRANK FEHR BREWING COMPANY, and CENTRAL CONSUMERS COMPANY, a Corporation, Appellants
• Court: Kansas Court of Appeals

221 S.W. 793

203 Mo.App. 635

J. H. BAGNALL, Respondent, v. FRANK FEHR BREWING COMPANY, and CENTRAL CONSUMERS COMPANY, a Corporation, Appellants

Court of Appeals of Missouri, Kansas City

May 10, 1920

Appeal from Jackson Circuit Court.--Hon. Harris Robinson, Judge.

AFFIRMED.

Judgment affirmed.

J. M Johnson and J. D. Hill for respondent.

Rey O Douglas, Harvey C. Galbreath and Robert O. Worline for appellants.

OPINION

BLAND, J.

This is a suit to recover back the purchase price paid on a rescinded sale of 3000 cases of Ambrosia, a non-alcoholic beer manufactured by the defendant, Central Consumers Company. At the trial plaintiff dismissed as to Frank Fehr Brewing Company as its name was used merely as a trade name by the real party, defendant, Central Consumers Company.

The facts show that plaintiff was a wholesale liquor dealer in Kansas City, Missouri, and desired to add a non-alcoholic or near-beer line to his business. On the 31st day of January 1917, plaintiff wrote defendant asking it to quote him the price of its temperance beer. On February 2, defendant wrote plaintiff quoting a price of $ 2.00 per case, each of two dozen bottles, f.o.b. Kansas City, and agreeing to buy back the cases and empty bottles at 90 cents a case. In reference to defendant's beverage the letter stated--

Fehr's Ambrosia is a beverage we have been selling for the past six or seven years. We warrant the same to be absolutely free of alcohol, requires no Goverment License to sell it and is chill-proof. We feel sure that a thorough test, by comparison with other beverages of similar character, will convince you that Fehr's Ambrosia is a standard, non-alcoholic beverage and can be made a profit producer for any one having the facility for handling same on a fairly large scale."

Some correspondence was had between the parties, and on February 26, 1917, defendant wrote plaintiff that their agent Mr. Lehrritter, would call on him in reference to the pending business. The letter, contained among other things, words laudatory of the beverage and stated "we hope that when our Mr. Lehrritter sees you that you will conclude to become our wholesale distributor in your section of the country." Afterwards Lehrritter saw plaintiff. The price wanted for the beverage was higher than that charged by the manufacturers of competitive beverages and plaintiff asked Mr. Lehrritter particularly if the beer would cloud and the latter warranted that it would keep at least a year without clouding. On March 6, 1917, defendant wrote plaintiff that Mr. Lehrritter had reported that plaintiff had made a proposition to him in reference to the terms of payment, and offering to allow plaintiff to make payments for the beverage, bottles and cases in a specified manner. The letter further stated that defendant had an established rule to make one charge only for Ambrosia, or beer in bottles. Plaintiff on receipt of the letter wired defendant that the terms contained in the last mentioned letter was satisfactory.

There were 3000 cases of "Ambrosia" shipped by defendant to plaintiff on which plaintiff made payments in the sum of $ 4700.56. At the end of the summer season plaintiff had on his hands a total of 2380 cases, which included 1340 cases that plaintiff had sold a customer in Kansas. Near the beginning of the season defendant represented to plaintiff that it might not be able to fill future orders and plaintiff becoming alarmed that he might not be able to get a sufficient supply of the beverage for his summer delivery, purchased a large amount with the expectation of keeping it over until the following season in case he should be unable to dispose of all of it at the current season. He relied on the warranty that it would keep a year without clouding. Along in October, 1917, plaintiff discovered for the first time that the beverage had clouded and for that reason was unmerchantable and worthless. He immediately notified defendant in writing of this fact and rescinded the sale, demanding back his money for the spoiled goods remaining on his hands and offering to return it, together with the bottles and cases, or to hold the goods subject to defendant's order. This demand was refused whereupon this suit was brought. The answer was a general denial and a counterclaim for the balance, or $ 1992.44, unpaid on the purchase price of the 3000 cases that were delivered. There was a trial before a jury which resulted in a verdict of $ 2800.55, which was reduced by the court by the sum of $ 170.15, on account of a matter hereinafter mentioned, and judgment entered for plaintiff for the balance.

It is urged by the defendant that the court erred in permitting witnesses to testify tha Lehrritter warranted the beverage not to cloud for at least a year. In this connection it is claimed that the correspondence that passed between the parties constituted a complete written contract and that the same could not be altered or varied by parol evidence of an additional warranty to those contained in the writing. This point would be well taken were it not for the fact that the letters upon their face show that they did not contain a complete agreement and did not purport to be a complete expression of the entire contract. In such circumstances the part reduced to writing may be enlarged by parol evidence. [Koons v. St. Louis Car Co., 203 Mo. 227, 255, 101 S.W. 49; Mosby v. Smith, 194 Mo.App. 20, 186 S.W. 49.] We think that the letters did not purport to cover the entire agreement for the reason that defendant's letter of February 26, 1917, told plaintiff that it was going to send Mr. Lehrritter to see him in regard to the sale of the beverage and stated that "We hope that when our Mr. Lehrritter sees you that you will conclude to become our wholesale distributor for your section of the country." It is apparent that Lehrritter was sent to make an agreement with plaintiff covering the sale of the beverage. Defendant's letter of March 6, 1917, does not show that defendant intended therein to deal with all the matters that Lehrritter discussed with plaintiff but only the propositions made by plaintiff to the defendant regarding the price to be charged for the beverage and the terms of payment. From all the circumstances it is apparent that the contract was intended to consist of the letters and the statements made by Lehrritter to plaintiff to induce plaintiff to purchase the beverage.

It is insisted that plaintiff was not in a position to...