Crabtree v. Maupin Seed Co.
| Citation | 294 S.W. 433 |
| Parties | CRABTREE v. MAUPIN SEED CC. |
| Decision Date | 09 May 1927 |
| Court | Court of Appeal of Missouri (US) |
Appeal from Circuit Court, Harrison County; L. B. Woods, Judge.
Action by W. H. Crabtree against the Maupin Seed Company, in which defendant filed a counterclaim. Judgment for plaintiff, and defendant appeals. Affirmed.
J. W. Sullinger, of King City, and Garland Wilson, of Bethany, for appellant.
J. W. McKnight, of Albany, and Barlow & Kautz, of Bethany, for respondent.
This is an action to recover an alleged balance of $337.50 due on a contract of sale of 12,553 pounds of stripped blue grass seed. On April 23, 1923, plaintiff and defendant entered into the following contract:
Under this agreement, defendant furnished plaintiff five blue grass strippers, which we understand to be machines for stripping the seed from standing blue grass. The parties operated during the year 1923 with the five machines, and settlement for that year was made under the terms of the contract, and there is no controversy about the transactions for that year. By agreement of parties, they operated under the terms of this contract for the year 1924, defendant furnishing four additional machines, and it is upon circumstances arising in 1924 that this controversy is based.
The evidence shows that in addition to the nine machines furnished by defendant, plaintiff operated three machines of his own, so that, under the contract, defendants were entitled to one-eighth of the seed stripped as rental for the nine machines furnished. It appears that under the terms of the contract plaintiff had shipped to defendant 12,553 pounds of seed, which, at the rate of $1.60 per bushel of 14 pounds, was of the value of $1,434.63. It further appears that plaintiff had not shipped to defendant all the seed stripped during the year, but had stored a portion thereof (estimated at about 2,500 bushels) in a building on plaintiff's farm and which was in the process of curing, or was cured, and not yet shipped, when, from an unknown cause, the building together with the seed stored therein was destroyed by fire.
On August 8, 1924, defendant sent plaintiff the following statement, accompanied by a check for $908.36, which check plaintiff received and cashed:
"Maupin Seed Company
"King City, Missouri, 8-18-24
"Bought of W. H. Crabtree, Bethany, Mo
Bags Gross Tare Net
306 Stripped 12,935 282 12,653 1.60 $1,434 63
blue grass
Less one-sixth for use of strippers ............ 179 32
$1,255 31
Less bags not retd ........................ 9 45
$1,245 86
Less insurance 337 60
Check inclosed for ............................ $ 908 36"
In this statement of account, it is noted that defendant took credit for $179.32, being one-eighth (although the statement reads one-sixth) of $1,434.63; also, a credit for bags not returned, $9.45; and $337.50 for a pro rata share of certain insurance collected by plaintiff for the seed destroyed by fire. This last item is the only one in dispute in this case.
It appears that after the shipment to defendant of the 12,553 pounds of seed, and after the statement above referred to had been rendered, plaintiff went to King City, Mo., where defendant operated, and suggested to the junior member of the firm that a mistake had been made and demanded a check in the amount due, but this demand was refused. After receipt of the statement and check, plaintiff refused to return the strippers owned by defendant then in plaintiff's possession, until the amount demanded was paid, upon the ground that defendant was not entitled to any share of the insurance derived from the seed destroyed by fire.
The petition alleges that defendant is a partnership composed of A. P. Maupin and M. D. Maupin, doing business under the firm name of Maupin Seed Company, at King City, Mo.; that during the month of August, 1924, defendant purchased of plaintiff 12,553 pounds of stripped blue grass seed at $1.60 per bushel; that the full purchase price of said seed was $1,434.63; that said seed so purchased was shipped to defendant at King City, Mo.; that defendant paid on said purchase price the sum of $1.097.13; that the balance due thereon is $337.50; that payment thereof was demanded but was refused by defendant, and judgment is prayed for this amount.
The petition was amended later by interlineation, as follows:
"That the amount of cash received is $908.26; the amount retained by defendant for bags, $9.45; amount paid for rental of machines $179.32, total $1,097.13."
The first amended answer is a general denial, and, as further answer and counterclaim, it is alleged that by virtue of a written agreement entered into by the parties on April 23, 1923, defendant furnished to plaintiff nine blue grass strippers, and by the terms of said agreement defendant was entitled to one-sixth of all seed stripped by plaintiff or his representatives, to be delivered to defendants f. o. b. the cars at nearest shipping point; and if other machines were used by plaintiff the rental was to be in proportion to the number of machines used in the stripping process; that plaintiff retained said strippers during the season of 1924, under the terms of said written agreement; that by the terms of said agreement, defendant had an option upon all the seed stripped by plaintiff; that plaintiff used said machines during the season, and delivered to defendant, f. o. b. cars at New Hampton, Mo., 12,553 pounds of seed so stripped in the season of 1924; that plaintiff falsely represented to defendant that in addition to the 12,553 pounds so shipped, there had been only 28,000 pounds stripped with said machines for the year 1924, or a total amount of 40,553 pounds; whereas, in fact, plaintiff and his agents and employees had gathered 41,869 pounds in addition to the 12,553 pounds shipped as aforesaid; which said 41,869 pounds plaintiff has failed and refused to deliver; that the amount of seed gathered with said machines during the season of 1924 was 54,413; that the pro rata rental for said machines to which defendant was entitled was 7,416 pounds, or 528 bushels of the value of $1.60 per bushel, a total value of $844.80; that of said total amount of rental, there was retained by defendant, from said shipment of 12,553 pounds, the pro rata part thereof, or $337.50; that there is still due defendant from plaintiff the sum of $507.30, for which judgment is asked.
The reply admits the execution of the written agreement of April 23, 1923, and that one-sixth of the seed...
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Russell v. Williams
...(1929), supra, 219 Ala. 319 (122 So. 318, 319); Herrington v. Herrington (1929), 40 Ga.App. 652 (151 S.E. 114); Crabtree v. Maupin Seed Co. (1927) (Mo.App.) 294 S.W. 433, 435; Annely v. De Saussure (1887), 26 S.C. 497 (2 S.E. 490, 495, 4 Am.St.Rep. 725); Newsome v. St. Paul Mercury Ins. Co.......
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Russell v. Williams
...(Bell v. Barefield, supra, 219 Ala. 319, 122 So. 318, 319; Herrington v. Herrington, 40 Ga. App. 652, 151 S.E. 114; Crabtree v. Maupin Seed Co. (Mo.App.), 294 S.W. 433, 435; Annely v. De Saussure, 26 S.C. 497, 2 S.E. 490, 494; Newsome v. St. Paul Mercury Ins. Co. (Tex.Civ.App.), 331 S.W.2d ......
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Milbourn v. Bowman Bros. Realty Co.
...or tending to show accord and satisfaction. The law with respect to this is well settled contrary to defendant's view. Crabtree v. Maupin Seed Co. (Mo. App.) 294 S. W. 433; Gulfport Wholesale Lumber Co. v. Boeckeler Lumber Co. (Mo. App.) 287 S. W. 799; Pidcock v. Williams, 214 Mo. App. 248,......
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CHAPTER 2
...(Bell v. Barefield, supra, 219 Ala. 319 (1929); Herrington v. Herrington, 40 Ga. App. 652 (1929); Crabtree v. Maupin Seed Co., (Mo. App.) 294 S.W. 433, 435 (1927); Annely v. De Saussure, 26 S.C. 497 (1887); Newsome v. St. Paul Mercury Ins. Co., 331 S.W.2d 497 (Tex. Civ. App. 1960); Conley v......