Bauerdorf v. Henry Vose Wall Paper Co.

• Decision Date: 01 April 1918
• Docket Number: No. 12583.,12583.
• Parties: BAUERDORF v. HENRY VOSE WALL PAPER CO.
• Court: Missouri Court of Appeals

203 S.W. 220

BAUERDORF v. HENRY VOSE WALL PAPER CO.

No. 12583.

Kansas City Court of Appeals. Missouri.

April 1, 1918.

Appeal from Circuit Court, Buchanan County; Charles H. Mayer, Judge.

"Not to be officially published."

Action by Charles R. Bauerdorf, trustee, against the Henry Vose Wall Paper Company. Judgment for plaintiff, and defendant appeals. Affirmed.

Groves & Watkins, of St. Joseph, for appellant. Spencer & Landis, of St. Joseph, for respondent.

BLAND, J.

This is a suit upon a contract wherein defendant purchased wall paper from Frederick Beck & Co. Frederick Beck & Co. for value assigned this contract to plaintiff. Plaintiff prevailed in the lower court, and defendant has appealed.

The facts show that the defendant was a jobber of wall paper, located in the city of St. Joseph, Mo. Frederick Beck & Co. was a manufacturer or printer of wall paper, located at Hoboken, N. J. Beginning with November 15, 1916, defendant sent in to Frederick Beck & Co. several written orders for wall paper, which were accepted by the latter. This suit is for the contract price of a part of the first shipment. Defendant admitted that the amount claimed was correct but claimed damages by reason of alleged breaches of the contract.

The evidence shows that each manufacturer or printer of wall paper had individual or distinct prints, and that a custom existed for wall paper jobbers to make up sample books from these prints and place them before their customers, from which the latter selected the paper desired. The evidence shows that the first order, or the order sued upon, was for the purpose of making these samples. Defendant was put to great expense in making up these sample books, which were worthless for the reason that Frederick Beck & Co. went into bankruptcy, and failed to fill the remainder of the first order and the subsequent orders of paper to correspond with the samples. Defendant was able to get elsewhere only a portion of the paper to fill orders secured on these samples. The failure of Frederick Beck & Co. to fill the remainder of the first and the subsequent orders also put defendant to other expenses in reference to the matter. It was shown that Frederick Beck & Co. knew that the first order was filled for the purpose of making up the sample books, and knew that the paper contained in this order was worthless, unless subsequent orders were filled.

The petition sues for that part of the first order that was filled, which was assigned to plaintiff. The answer was a general denial and a "counterclaim and equitable defense and recoupment"; the latter stating facts as already detailed, pleading them as a set-off or counterclaim, and asking damages for the failure of Frederick Beck & Co. to fill the remainder of the first and subsequent orders, and also for $29.40, being the amount of money defendant was required to pay in excess freight by reason of the shipment sued upon being diverted by Frederick Beck & Co. over an indirect route to St. Joseph, Mo. Defendant contends that the various orders, including the first order, was one entire contract, and as Frederick Beck & Co. failed to...