Bahrenburg v. Conrad Schopp Fruit Co.

• Decision Date: 17 December 1907
• Citation: 107 S.W. 440,128 Mo. App. 526
• Parties: BAHRENBURG et al. v. CONRAD SCHOPP FRUIT CO.
• Court: Missouri Court of Appeals

107 S.W. 440

128 Mo. App. 526

BAHRENBURG et al. v. CONRAD SCHOPP FRUIT CO.

St. Louis Court of Appeals. Missouri.

December 17, 1907.

Rehearing Denied February 4, 1908.

1. ACCORD AND SATISFACTION — EVIDENCE — BURDEN OF PROOF.

The burden of proving an alleged accord and satisfaction lies on him who alleges it.

2. SAME — EVIDENCE — SUFFICIENCY.

An accord and satisfaction may be established by circumstances and conduct, and it is not essential that the debtor declare in terms, in making a tender, that it is in full payment of the claim.

3. TENDER — CONDITIONAL TENDER — EFFECT OF ACCEPTANCE.

A creditor, accepting money tendered conditionally, assents to the condition, and cannot accept the money and reject the conditions on which it was tendered.

4. ACCORD AND SATISFACTION — TENDER OF PART IN FULL PAYMENT — ELECTION TO ACCEPT IN FULL PAYMENT — NECESSITY.

In order to compel a creditor to elect to accept an amount tendered in full satisfaction, or to reject it, the conditional nature of the tender must appear so clearly that a court could declare that its acceptance was an accord and satisfaction.

5. SAME — EVIDENCE.

The silence of a debtor after he is notified that the creditor will not accept a tender in full payment, but will only credit it on account, may be considered in determining whether there was an accord and satisfaction.

6. SAME — EVIDENCE — QUESTION FOR JURY.

In an action to recover a part of the purchase price for goods sold defendant, whether the amount tendered by defendant was tendered and accepted in full payment of the claim, held, under the evidence, for the jury.

Appeal from St. Louis Circuit Court; Jas. E. Withrow, Judge.

Action by C. H. Bahrenburg and others against the Conrad Schopp Fruit Company. From a judgment for plaintiffs, defendant appeals. Affirmed.

Plaintiffs are partners doing business in the city of New York, and defendant is a corporation doing business in the city of St. Louis. On March 12, 1904, defendant bought from plaintiffs two carloads of sauer kraut of 55 casks each, or 110 casks in all, at $9 a cask, or a total of $990. The petition alleges that on December 18, 1905, defendant paid plaintiffs $370.35 on account of the purchase price of the kraut, leaving a balance of $619.65 due thereon, for which, with interest from March 15, 1904, judgment was prayed. The answer contains two counts, and admits the purchase of the kraut as stated in the petition. The first count avers that defendant had been purchasing kraut prior to the purchase in controversy, and that on March 11, 1904, plaintiffs offered to sell defendant two carloads of kraut of 55 casks each of the same kind defendant had theretofore been buying, and the parties agreed on a purchase of two carloads at $9 a cask in the city of New York, which was the fair market value of the product of the season of 1903; that all the kraut previously purchased from plaintiff had been good merchantable kraut; that it was understood between the parties that the purchase in controversy was to be of the season of 1903; that 55 casks of the purchase of March, 1904, were of that character and quality, but the remaining 55 casks were not of good quality or the product of the season of 1903, but were totally worthless for any purpose. The second count or paragraph of the answer avers that on receipt of the 55 casks of worthless kraut defendant was compelled to pay freight thereon from New York to East St. Louis, amounting to $115.18, and for drayage from East St. Louis to St. Louis on the same of $8.25, and afterwards, when the kraut was discovered to be worthless, other drayage amounting to $8.25 for hauling the same to the river and dumping it; that the total amount of all expenses incurred on account of the worthless kraut was $124.65; that defendant owed plaintiffs $495 for the carload of good kraut, and, deducting from said sum the $124.65 paid by defendant on account of the worthless kraut, there remained due from defendant to plaintiffs the sum of $370.35; that when defendant discovered one carload was spoiled and worthless a controversy arose between the parties as to the liability of defendant to pay for said worthless kraut and as to its right to hold plaintiffs for the expense incurred for freight and drayage on it; that during the pendency of said controversy, on or about September 7, 1904, defendant sent to plaintiffs a New York draft for $370.35 in full settlement of the controversy that said draft was received and cashed by plaintiffs, which closed the dealings between the parties. The reply was a general denial of the new matter contained in the answer. All the dealings between these parties were conducted by correspondence, either by letter or telegram. The correspondence established and the pleadings admitted that defendant purchased two carloads of kraut of 55 casks each at $9 a cask; that this kraut was shipped about March 12, 1904. It was agreed one carload was good merchantable kraut, and no complaint was made about it. The testimony for defendant tends to prove that when the other carload was received and the contents of the casks examined it was found to be rotten and utterly worthless, and had to be dumped into the Mississippi river; that not a pound of it was fit for use; further, that if the kraut had been of the product of the year 1903 and in good order when it was shipped from New York, it could not have spoiled by the time it reached St. Louis, or was inspected there. The kraut was imported from Europe by a firm of White & Company, and sold by plaintiffs on commission direct from the ship; that is to say, sales had been made to purchasers in different parts of the country, and when the ship arrived in port the kraut was loaded from the ship to cars, and sent to plaintiffs' customers. Plaintiffs' contention was, and their evidence tended to prove, that all the kraut was in perfect condition when it left New York, after which it was, according to the terms of sale, at defendant's risk; that the carload over which the controversy arose was not opened and inspected by the defendant until 11 days after it had reached East St. Louis, to wit, April 2d; and that if it was spoiled this occurred on account of the long delay in re-receiving it and opening it at so late a season of the year, that is to say, the latter part of March. The good kraut was shipped in car No. 1867 over the Delaware, Lackawanna & Western Railroad, and the spoiled kraut was shipped in car No. 11671 over another route. As soon as the condition of the latter kraut was discovered by defendant, to wit, April 2, 1904, it telegraphed plaintiffs that the kraut was spoiled, worthless, evidently two years old, unmarketable and unacceptable, and for plaintiffs to wire what disposition should be made of it. Plaintiffs telegraphed back that the kraut had reached its destination 10 days before; that the quality was exactly as quoted, and plaintiffs would not take it back. On the same day defendant telegraphed it wrote that the kraut was ruined, and wanted to know what disposition to make of it. Plaintiffs replied to said letter, reiterating the position taken in their telegram, that the kraut was in good condition when shipped, and insisting defendant should bear the loss. Defendant responded by wire that ignorance and bulldozing would not do; that the kraut was not what had been purchased, and was subject to plaintiffs' order. Plaintiffs replied by letter that they had acted in good faith as commission merchants, and stood by what they had written; that they had shown defendant's correspondence to W. N. White, the real principal in the transaction, whose letter was inclosed; that plaintiffs hoped there would be no further unpleasantness, and expected defendant's check for the full amount of the bill. On April 16th a telegram was sent by plaintiffs to defendant saying that the kraut was defendant's, as White refused to do anything in the matter; that defendant would be held responsible, but plaintiffs would be willing to lose their commission of $50. The telegram further stated that this position was final. On April 19th plaintiffs wrote that they had taken their final position; that the kraut belonged to defendant; that it had been for days at destination when the latter claimed the goods had not been received; that plaintiffs' responsibility ceased when the goods were shipped; that plaintiffs were willing to lose their commission, but as defendant refused to accept that proposition, there was nothing left but for plaintiffs to collect the account, which it would proceed to do. On April 16th, prior to said letter, defendant had telegraphed plaintiffs that White and his kraut did not concern defendant, as the latter had not received what it bought; that the kraut was subject to plaintiff's order, and plaintiffs might take this as final. It should be stated that on March 15, 1904, a draft or bill of exchange had been drawn by plaintiffs on defendant for the two carloads of kraut, to wit, $990. This draft came to the National Bank of Commerce of St. Louis, and when presented to defendant for payment it seems the kraut had not yet been delivered. The defendant did not pay it, and it was returned to plaintiffs unpaid on April 8, 1904. Subsequent to the acrimonious correspondence which we have abridged, and other letters and telegrams of a similar tenor which passed during April, nothing transpired between the parties, so far as the record shows, until September 7, 1904, when Kinealy & Kinealy, a firm of attorneys acting for defendant, sent a bank cashier's check to plaintiffs for $370.35. This check is as follows:

German American Bank.

                St. Louis, Mo. Aug. 12, 1904.     No. 217,166
                  Pay to the order of Conrad Schopp Fruit Co
                $370.35, three hundred and seventy and 35/100
                dollars.     L. F. Placke, Assistant Cashier
                

The check was inclosed in the following letter:

                        St. Louis, Mo., Sept. 7th, 1904
                

J. H. Bahrenburg Bro. & Co.,...