Commercial Jewelry Co. v. Russell Grocer Co.

• Decision Date: 08 May 1922
• Docket Number: No. 3035.,3035.
• Citation: 240 S.W. 858
• Parties: COMMERCIAL JEWELRY CO. v. RUSSELL GROCER CO.
• Court: Missouri Court of Appeals

240 S.W. 858

COMMERCIAL JEWELRY CO. v. RUSSELL GROCER CO.

No. 3035.

Springfield Court of Appeals. Missouri.

May 8, 1922.

Appeal from Circuit Court, Howell County; E. P. Dorris, Judge.

Action by the Commercial Jewelry Company against the Russell Grocer Company Judgment for defendant, and plaintiff appeals. Affirmed.

J. L. Bess, of West Plains, for appellant.

W. L. Hiett, of Houston, and Allen & Allen, of Springfield, for respondent.

FARRINGTON, J.

This is an action brought by the plaintiff on a written order signed by the Russell Grocer Company, by Carl S. Russell, in which plaintiff agreed to sell and defendant agreed to buy certain articles of jewelry and leather goods. The petition fails to show whether the Russell Grocer Company is a corporation or a firm; however, we will not determine this case on that failure.

The order signed by the defendant contained a number of warranties, special privileges, and provisions relative to advertising, etc. At the conclusion of the written portion of the contract, and under the name of B. I. Mahur, salesman, and the name of Russell Grocer Company, by Carl S. Russell appears the following memorandum: "Ship jewelry by express to Cabool, Mo. Ship Case by Express to Cabool, Mo."

The evidence shows that the Russell Grocer Company is located at Sterling, Mo., which is a station on the Frisco Railway, but where there is no post office or express office. However, it is shown in evidence that the express company delivered goods there at the time the contract was to be performed. The evidence, without contradiction, shows that this order was shipped by plaintiff to the Russell Grocer Company at Cabool, Mo., a town some 10 miles from Sterling, and remained in the express office for some time, when the defendant notified the express company that it would not receive the goods there, and to return them.

The whole question comes here on whether plaintiff made a sufficient case to entitle it to recover a verdict, and we hold, under the law and the facts of the case, that it was for the jury to determine the fact concerning whether the memorandum which we quoted, under the names of the parties to this contract, was correctly filled in by the agent of the plaintiff. Defendant's testimony shows that the contract was signed up and all filled in, except the blanks left showing the place where the goods were to be sent and how, and that when he signed the contract and it was delivered to the salesman for the plaintiff...