Bovard v. Mergenthaler Linotype Co.

Decision Date17 February 1919
Docket NumberNo. 13163.,13163.
Citation209 S.W. 965
PartiesBOVARD v. MERGENTHALER LINOTYPE CO.
CourtKansas Court of Appeals

Appeal from Circuit Court, Jackson County; E. E. Porterfield, Judge.

"Not to be officially published."

Action by John C. Bovard against the Mergenthaler Linotype Company. From an adverse judgment, plaintiff appeals. Affirmed.

New, Miller, Camack & Winger and C. E. Cooley, all of Kansas City, for appellant. Ashley & Gilbert, of Kansas City, for respondent.

TRIMBLE, J.

Plaintiff, a commercial printer in Kansas City, claims that on July 5, 1916, he entered into a written contract with defendant, through the latter's agent a Mr. Menamin, to buy two new "Model 19" linotypes with certain extra equipment, at the price of $5,620.50, payment therefor to be made by plaintiff exchanging or turning over to defendant his two old linotypes, Model 1 and Model A, with their equipment, together with the sum of $2,200 in cash, secured by chattel mortgages on the new machines. The alleged contract provided that the new machines and equipment were to be f. o. b. cars at New York, and the old machines and equipment were to be f. o. b. Kansas City.

The defendant refused to perform the contract, and plaintiff brought this suit for damages. A demurrer to plaintiff's evidence being about to be sustained, he took an involuntary nonsuit, with leave to move to set the same aside. This motion was duly filed and overruled, and plaintiff has appealed.

It seems that plaintiff, learning that Mr. Menamin was negotiating with the Independent Composing Company, a printing establishment across the street, to put in new machines in place of old, spoke to Mr. Menamin about plaintiff doing likewise. After some discussion they agreed upon terms, made a memorandum thereof, and Menamin in a day or two returned to plaintiff's place of business with a written proposition embodying the terms of their prior oral discussion.

This proposition was in the form of a letter addressed to plaintiff, written on a letterhead of the defendant showing that its executive offices were at New York, and naming Geo. E. Lincoln as "Manager Chicago Agency, 1100 S. Wabash Ave., Chicago, Ill."

This letter was dated "Kansas City, Mo., July 5, 1916." It offered to sell plaintiff the two machines and equipment described, f. o. b. New York, for his two machines and equipment properly described, f. o. b. Kansas City, and a net difference of $2,200, payable in certain monthly installments, bearing interest, and secured by chattel mortgage. The letter ended thus:

                    "Yours very truly
                           "Mergenthaler Linotype Company
                     "Geo. E. Lincoln
                                   "M
                           "Manager."
                    Below this was the following
                

"This is taken, in connection with order from Independent Composing Company taken this day dated June 26, 1916, and machines are to be shipped in same car. Shipment within six weeks or better if it can be done, about August 10, 1916.

"Reply to this letter should be addressed to the company as above."

The letter was typewritten, and Menamin had a carbon duplicate. The plaintiff signed his name to the word "Accepted" at the left of the word "Manager," and did this on both duplicates. On one or both of them Menamin in plaintiff's presence wrote his name at the top, telling plaintiff that he wrote it there "just to show who it is by; that is who made it." One of the duplicates was given plaintiff, and Menamin retained the other.

On July 8th, plaintiff received a letter from the Chicago Agency of the defendant saying:

"We acknowledge with thanks receipt of `special' memorandum of sale agreement signed by you covering an order for two Model 19 linotypes with extra equipment given our Mr. Menamin under date of July 5th.

"The papers in question have been forwarded our Contract Department in New York City for their consideration and you will no doubt hear from them within the next few days."

"Thanking you for this business and the courtesy shown our Mr. Menamin, we remain,

                    "Very truly yours,
                       "Mergenthaler Linotype Company,
                                "Geo. E. Lincoln, Manager."
                

On July 24th, plaintiff was notified that the contract was not satisfactory to the defendant, and...

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5 cases
  • McMonigal v. North Kansas City Development Co.
    • United States
    • Kansas Court of Appeals
    • March 6, 1939
    ... ... Craver v. House, 138 Mo.App. 251; Homan v ... Brooklyn Life Ins. Co., 7 Mo.App. 22; Bovard v ... Mergenthaler Linotype Co., 209 S.W. 965, l. c. 967. (8) ... Testimony elicited by ... ...
  • McMonigal v. N. Kansas City Dev. Co.
    • United States
    • Missouri Court of Appeals
    • March 6, 1939
    ...and base their verdict thereon. Craver v. House, 138 Mo. App. 251; Homan v. Brooklyn Life Ins. Co., 7 Mo. App. 22; Bovard v. Mergenthaler Linotype Co., 209 S.W. 965, l.c. 967. (8) Testimony elicited by plaintiffs' counsel in the cross-examination of defendant's president Curran and of Mr. Z......
  • Howell v. Hines
    • United States
    • Missouri Supreme Court
    • April 6, 1923
    ... ... Osborne v. Syster, 195 Mo.App ... 520; Heffernan v. Neumond, 198 Mo.App. 667; Bovard ... v. Mergenthaler Linotype Co., 209 S.W. 965 ...          N. T ... Gentry for ... ...
  • Bishop Press Co. v. Lowe
    • United States
    • Missouri Court of Appeals
    • March 3, 1919
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