Brockman Commission Company v. Kilbourne

• Decision Date: 21 March 1905
• Citation: 86 S.W. 275,111 Mo.App. 542
• Parties: BROCKMAN COMMISSION COMPANY, Respondent, v. KILBOURNE, Appellant
• Court: Missouri Court of Appeals

86 S.W. 275

111 Mo.App. 542

BROCKMAN COMMISSION COMPANY, Respondent, v. KILBOURNE, Appellant

Court of Appeals of Missouri, St. Louis

March 21, 1905

Appeal form St. Louis City Circuit Court.--Hon. Robert M. Foster Judge.

AFFIRMED.

STATEMENT.

Plaintiff is a corporation doing business in the city of St. Louis Missouri. Defendant is member of a partnership doing business under the firm name of C. H. Weaver & Co., in the city of Chicago, Illinois.

The petition is in two counts; for cause of action the first alleges "that on or about the month of May, 1897, the defendant at the said city of Chicago, acting as a member of the said firm of C. H. Weaver & Co., and on its behalf undertook and contracted to and with the plaintiff, to sell and deliver to the plaintiff in the said city of Chicago, in the month of July, 1897, twelve thousand (12,000) pounds of dairy butter in two hundred (200) tubs, containing sixty (60) pounds in each tub, at the price of eight and one-half (81-2) cents per pound. The defendant and his said firm violated the said contract and undertaking, and failed and refused to deliver the said butter or any part thereof, to the plaintiff, though the plaintiff frequently demanded the same to the plaintiff's damages in the sum of seven hundred and twenty ($ 720) dollars."

The second count alleges, in substance, that under a contract to sell and deliver plaintiff two hundred boxes of Australian ladle packed butter, the defendant shipped from Chicago Illinois, to plaintiff, at St, Louis, Mo. ten boxes of such butter to be inspected by the plaintiff and if not found satisfactory to be returned to the Weaver Company, the company to pay freight charges both ways; that the plaintiff paid the freight ($ 2.35) from Chicago to St. Louis, inspected the butter, found it unsatisfactory and returned it to Chicago.

The answer, omitting caption, is as follows:

"Defendant for his answer to the first cause of action in plaintiff's amended petition says, that the contract described in said first count was a parol contract for the sale of goods, wares and merchandize, for a price exceeding the sum of thirty ($ 30) dollars; that no note or memorandum in writing was made of the bargain and signed by the defendant, or his agent lawfully authorized; that no part of the goods so sold were accepted and received by the plaintiff, and that nothing was given in earnest to bind the bargain, or any part payment thereof.

"Wherefore defendant asks to go forward with his costs.

"And for a second and further defense to said first cause of action, defendant says that said contract was a parol contract, and that on or about the seventeenth day of July, 1897, plaintiff by its president and duly authorized agent and defendant, for and in consideration of the agreement on the part of defendant not to require the plaintiff to receive said goods, and for and in consideration on the part of the plaintiff and of the agreement on the part of the defendant to release it from said contract, said contract was by mutual agreement rescinded, and then and thereby became of no force and effect.

"And further answering said first cause of action in plaintiff's amended petition, defendant denies each and every allegation therein contained, not heretofore expressly admitted.

"And for answer to plaintiff second cause of action, in said amended petition contained, defendant denies each and every allegation therein contained.

"Wherefore, having fully answered, defendant asks to go hence with his costs."

A reply was filed putting in issue the new matter in the answer.

The evidence of both parties shows that a verbal contract was made at the city of Chicago, at the time alleged in the petition, whereby defendant's firm agreed to sell and deliver to plaintiff two hundred sixty-pound tubs of No. 2 dairy butter at eight and one-half cents per pound. At the time the contract was entered into defendant's firm did not have the butter on hand, but it was agreed that the butter might be shipped to plaintiff at any time within the following three or four weeks and when it was on hand, Weaver & Co., would notify the plaintiff and plaintiff should go to Chicago and inspect the butter, which was to be equal to a sample shown plaintiff's agent on the day the bargain was made. In the course of three or four weeks plaintiff received a telegram from defendant's firm notifying it that the two hundred tubs of butter was ready for inspection and delivery and to come to Chicago and inspect it. F. W. Brockman, president of plaintiff corporation, testified that he received the telegram and on the evening of the same day started to Chicago and on arriving there went to defendant's place of business; that some butter was shown him put up in tubs and tin cans, ranging in weight from ten to fifty pounds, but it was of very bad quality and he refused to receive it; that he was then shown about thirty tubs each containing sixty pounds of butter, which he also inspected and found to be old and strong, and he then and there notified defendant that he would not receive any of the butter shown him for inspection; that the defendant said: "I am sorry and we will consider the trade off." Witness testified that he replied: "No, I want the goods and will hold you to the bargain." That defendant then showed him some Australian ladle packed butter and offered to sell him two hundred boxes of it; that he sampled some of it and agreed that plaintiff would take two hundred boxes of the Australian butter, corresponding to sample, but as the two hundred boxes were not on hand defendant agreed to ship plaintiff ten boxes in a few days, subject to plaintiff's inspection, and if found inferior to the sample plaintiff might return it, defendant to pay freight charges both ways; that the ten boxes were shipped, the freight was not prepaid and in order to have an opportunity to inspect it plaintiff had to pay and did pay the freight ($ 2.25); that on inspection the butter was found old and rancid and was immediately shipped back to defendant's firm; that in June and July, 1897, No. 2 dairy butter was worth from twelve to twelve and one-half cents per pound. Brockman testified that after returning the Australian butter, he sent a bill to defendant asking one hundred and eighty dollars as damages for the failure of his firm to deliver the two hundred sixty-pound tubs of No. 2 dairy butter, as per contract, and for $ 2.25 for freight paid on the ten boxes of Australain butter.

The defendant's evidence tends to show that when Brockman went to Chicago to inspect the butter, the defendant's firm had two hundred sixty-pound tubs of No. 2 dairy butter corresponding to the sample shown Brockman when the bargain was made; that Brockman inspected the butter but objected to it, and defendant then said to him, "Well, I am sorry that don't suit you and we will have to consider the trade off;" and Brockman replied, "Very well, let it be off;" that defendant then showed him some butter packed in smaller tubs, but it did not suit Brockman and he then showed him the Australian butter. Defendant's evidence further tends to show that in June and July, 1897, No. 2 dairy butter was worth from eight to eight and one-half cents per pound.

Defendant's evidence in respect to the cancellation of the contract and in respect to the market value of butter in June and July, 1897, was corroborated by several other witnesses. Brockman was the only witness who testified in behalf of the plaintiff. The jury found for plaintiff and assessed its damages at one hundred and eighty dollars on the first count, and at $ 2.35 on the second. Nine cents of the damages assessed on the second count was remitted by plaintiff, and the judgment was rendered for $ 182.24. Defendant appealed in the usual way.

Judgment affirmed.

Abbott & Edwards for appellant; Sullivan & Jarrett of counsel.

Charles B. Stark for respondent.

(1) There is evidence to support the finding of the jury, and it is well settled that, in actions at law, the court will not...