Brigham City Fruit Growers' Ass'n v. G. H. Zollmann P. Co.

• Citation: 220 S.W. 911
• Decision Date: 13 March 1920
• Docket Number: No. 21112.,21112.
• Parties: BRIGHAM CITY FRUIT GROWERS' ASS'N v. G. M. ZOLLMANN PRODUCE CO.
• Court: United States State Supreme Court of Missouri

220 S.W. 911

BRIGHAM CITY FRUIT GROWERS' ASS'N v. G. M. ZOLLMANN PRODUCE CO.

No. 21112.

Supreme Court of Missouri, Division No. 2.

March 13, 1920.

Motion for Rehearing Denied April 9, 1920.

Appeal from St. Louis Circuit Court; Samuel Rosenfeld, Judge.

Action by the Brigham City Fruit Growers' Association against the G. H. Zollmann Produce Company. From a judgment for plaintiff, defendant appeals. Affirmed on condition plaintiff enter remittitur; otherwise remanded.

On March 19, 1915, plaintiff filed in the circuit court aforesaid a petition against said George H. Zollmann Produce Company and H. B. Wallace and M. C. Gebert to recover the purchase price of 118 carloads of peaches. On February 28, 1918, plaintiff dismissed as to said Wallace and Gebert. The case was tried upon an amended petition, which, without caption and signatures, contains, in substance, among other averments, the following:

(1) That plaintiff is a Utah corporation, with its general office and place of business at Brigham City, in said state, engaged in the business of buying and selling fresh fruits, etc.

(2) That the George H. Zollmann Produce Company is a Missouri corporation with its general office and place of business at the city of St. Louis, Mo., and is engaged in the business of buying and selling fresh fruits and such like goods.

(3) That H. B. Wallace and M. C. Gebert are partners at the city of Twin Falls, Idaho.

(4) That on June 4, 1914, at Brigham City aforesaid, plaintiff entered into an agreement in writing with Wallace & Gebert, by the terms of which plaintiff agreed to sell and deliver to Wallace & Gebert, and the latter agreed to buy and receive from plaintiff, 50 cars of Elberta peaches, free on board cars at Brigham City, for which they were to pay 55 cents per bushel when and as each of said cars was loaded; that said peaches were to be inspected and accepted by said Wallace & Gebert before they were loaded upon said cars. The above agreement was marked Exhibit A and made a part of plaintiff's complaint.

(5) That on June 20, 1914, a supplemental contract was made between said parties in which Wallace & Gebert agreed to purchase 75 additional cars of Elberta peaches on the same terms as shown by Exhibit A, supra. This agreement was filed, marked Exhibit B, and made a part of complaint.

(6) That on July 23, 1914, an additional and supplemental agreement was made between said parties by which said Wallace & Gebert were to purchase from plaintiff 10 ears of Elberta peaches on the same terms as those mentioned in Exhibits A and B, supra. This agreement was filed, marked Exhibit C, and made a part of complaint.

(7) That " between August 30, 1914, and September 17, 1914, in compliance with said agreements, plaintiff loaded, free on board of cars at Brigham City aforesaid, 130 cars of Elberta peaches, of 450 bushels each, which were inspected and accepted as a compliance upon the part of plaintiff with said agreements.

(8) That immediately before the commencement of the delivery of said peaches said Wallace & Gebert informed plaintiff they would not be able to pay in cash for said peaches at Brigham City aforesaid as provided in said agreements, and it was accordingly agreed between them that, when each car of peaches was loaded, the Oregon Short Line Railroad Company, in whose cars and on whose tracks said peaches were loaded, should issue bills of lading to and in the name of plaintiff as both consignor and consignee, with destination to such point or points as said Wallace and Gebert should direct, and that plaintiff should draw drafts for the purchase price of said peaches so loaded upon said Wallace & Gebert, and to send, or cause to be sent, said drafts, with said bills of lading attached, to the Idaho State Bank of said Twin Falls, in the state of Idaho, for payment, with Instructions to said last-named bank to deliver said bills of lading upon payment of said drafts to which they were severally attached to said Wallace & Gebert; that the latter represented and stated to plaintiff that said bank, on presentation of said drafts, would pay the same at sight.

(9) That, in pursuance of said last-mentioned arrangement, said Oregon Short Line Railroad Company issued bills of lading for 116 of said cars, loaded as aforesaid, in which this plaintiff is named as both consignor and consignee; that, at the direction of said Wallace & Gebert, Kansas City, Mo., was named as the destination of 37 of said cars, and North Platte, in the state of Nebraska, was named as the destination of 79 of said cars; that plaintiff drew drafts for the purchase price of said peaches loaded in said cars from day to day, and caused said drafts, with bills of lading attached, to be sent to said Idaho State bank, of Twin Falls, Idaho, for payment; that payment was made by said bank upon the drafts drawn for the purchase price of the first 12 of said cars, loaded as aforesaid, but thereafter said bank refused to pay said drafts and each of them sent to it as hereinbefore alleged; that said bank returned all of said drafts, with the bills of lading attached (except those paid as aforesaid to this plaintiff), unpaid.

(10) That on September 11, 1914, said, H. B. Wallace requested this plaintiff to release to him or the defendant, George H. Zollmann Produce Company, all of said cars of peaches then in transit, and, at said Kansas City, and at said North Platte, consisting of 104 of said cars so loaded and shipped as aforesaid; that is to say, said Wallace requested this plaintiff to instruct the Union Pacific Railroad Company, on whose tracks and in whose possession said cars then were, to deliver same or forward at the direction of himself or said George H. Zollmann Produce Company all of said cars without the surrender of said bills of lading issued as aforesaid; a copy of said request (telegram) is filed, marked Exhibit D, and made a part of this complaint; that upon the same day this plaintiff consented to do so upon a satisfactory guaranty of the payment of said drafts, a copy of which consent (telegram) is hereto attached, filed, marked Exhibit E, and made a part of this complaint; that on September 12, 1914, said Wallace & Gebert requested this plaintiff to release said cars in the manner as above alleged to the defendant, George H. Zollmann Produce Company, a copy of which said request (telegram) Is filed herewith, marked Exhibit F, and made a part of this complaint; that on the same day said defendant, George H. Zollmann Produce Company, requested this plaintiff to release said cars to it, and promised and agreed to pay the drafts drawn upon it for the purchase price of said peaches loaded in said cars, a copy of which said request (telegram) is filed herewith, marked Exhibit G, and made a part of this complaint; that on the same day said defendant, George H. Zollmann Produce Company, as part of said transaction above mentioned, caused to be communicated to this plaintiff, and to cause it to release said cars as requested by said defendant wired the First National Bank of Brigham City, Utah, that it would pay all of said drafts on said cars of peaches being released to it in the manner as aforesaid, a copy of which said promise (telegram) is filed herewith, marked Exhibit H, and made a part of this complaint; that said telegram to said First National Bank was communicated to this plaintiff; that it relied upon said promise therein made in making the release of said cars of peaches as here inafter alleged.

(11) That in reliance upon the promise of said defendant, George H. Zollmann Produce Company, to pay said drafts, this plaintiff released all of said cars to said defendant, and instructed said Union Pacific Railroad Company to deliver said cars to said defend ant, and to accept further shipping and delivery instructions from said defendant, without the surrender of bills of lading issued against said cars and each of them.

(12) That immediately after the receipt of the promise and guaranty of said defendant, as above alleged, and the release of said cars, as heretofore mentioned, at the request of said defendant, this plaintiff loaded 14 additional cars with Elberta peaches, each of said cars containing 450 bushels; that said peaches at the time of loading were inspected by Wallace & Gebert and by said defendant, and were accepted by each of them as a full compliance on the part of this plaintiff with its said agreements, which said cars, when so loaded, were billed direct to said defendant, George H. Zollmann Produce Company, and at its request Kansas City, Mo., was named as the place of destination. A copy of said request (telegram) to load said 14 ears is filed he-ewith, marked Exhibit I, and made a part of this complaint.

(13) That plaintiff filed herewith the original contract and supplements thereto, described herein as Exhibits A, B, and C, but the plaintiff is not able at this time to file or produce the original telegrams, copies of which are described herein as Exhibits D, E, G, H, and I, for the reason, that the original telegrams, signed by the senders thereof, are on file at the respective offices at the places where sent, or have been destroyed under the rules and regulations of the Western Union Telegraph Company, and said telegrams cannot now be procured by this plaintiff from said telegraph company, which under its rules and regulations refused to deliver the same to this plaintiff, but at the hearing of this cause this plaintiff will either offer and introduce in evidence said telegrams or will prove the constants by secondary evidence.

(14) That immediately upon the release by this plaintiff or said cars shipped to said North Platte, Neb., and Kansas City, Mo., and then at said places or in transit thereto, the said defendant, George H. Zollmann Produce Company, issued instructions to said Union Pacific Railroad Company, and caused the cars then at said Kansas City to be forwarded and transported to St....