Crawford v. Dahlenberg

• Decision Date: 03 May 1926
• Docket Number: No. 15475.,15475.
• Parties: CRAWFORD v. DAHLENBERG et al.
• Court: Missouri Court of Appeals

283 S.W. 65

CRAWFORD v. DAHLENBERG et al.

No. 15475.

Kansas City Court of Appeals. Missouri.

May 3, 1926.

Appeal from Circuit Court, Buchanan County; L. A. Vories, Judge.

Action by A. J. Crawford against George F. Dahlenberg, doing business as the St. Joseph Wool Company. Judgment for plaintiff, and defendant appeals. Reversed and remanded.

Landis & Duncan, of St. Joseph, for appellant.

Ryland, Boys, Stinson & Mag, of Kansas City, and Brown, Douglas & Brown, of St. Joseph, for respondent.

BLAND, J.

This is an action for damages for breach of a contract to purchase a quantity of wool. There was a verdict and judgment in favor of plaintiff in the sum of $2,400, and defendant has appealed.

Defendant insists that his demurrer to the evidence should have been sustained: First, because the wool was purchased by a sample, and upon representations as to quality, and that the wool tendered did not comply with the sample or the representations; second, that the contract of purchase was not by the defendant Dahlenberg, but by a corporation known as the St. Joseph Wool Company of which he was president; and, third, that the contract was not evidenced by a memorandum such as is required by the Missouri statute of frauds. Section 2170, R. S. 1919.

In considering a demurrer to the evidence, we must take the testimony, together with every reasonable inference that may be drawn therefrom, in favor of the plaintiff. Plaintiff's evidence tends to show that during the month of May, 1922, he had a number of lambs, estimated at about 3,500 or 4,000 head, in pens at Emporia, Kan.; that on the 4th, 5th, or 6th of the month defendant, through his agent Harper, had a conversation with plaintiff's agent, Baker, at Kansas City, Mo., about purchasing the wool from these lambs. On May 6th Baker received a telegram from plaintiff authorizing the former to sell the wool from the lambs at 38 cents per pound. After the receipt of this telegram, Baker showed it to Harper, who said that he would go to Emporia and look at the wool. Harper on May 8th said that he "figured the shrinkage of this wool" at about 63 per cent., and that he would take the wool at 38 cents a pound. Baker told Harper that the lambs numbered from 3,500 to 4,000. On May 8th Baker and Harper entered into an oral agreement whereby defendant, through Harper, purchased the wool at 38 cents per pound, to be delivered f. o. b. Emporia, and paid for there by draft. Defendant was to take all of the wool from the lambs. Baker denied that he was shown any sample of wool by Harper, or that any representations were made concerning the quality of the wool. Baker testified that he understood from Harper that the latter had gone to Emporia and seen the lambs from which the wool was to be sheared, although the latter did not specifically state that he had seen them.

Harper's evidence tends to show that he purchased the wool upon representations of. Baker as to its quality and by sample; that he took a sample of some other wool to Baker; and that it was agreed when the wool in controversy was purchased that it was to be of the same kind and quality of wool as the sample. He denied that he had seen the lambs at the time he purchased the wool, and stated that he relied entirely upon what Baker told him; that Baker said that "the wool was as good as the sample."

On the day Harper purchased the wool he wired defendant "George F. Dahlenberg" at St. Joseph as follows: "Have purchased wool thirty-eight cents letter follows," signed, "W. I. Harper." Harper wrote a letter confirming the purchase, but the same was lost, and could not be produced at the trial. On May 9, 1922, defendant wrote, addressing the letter to the concern by which Baker was employed, stating, "We are in receipt of a telegram and also a letter from our Mr. Harper, confirming of purchase of Crawford's wool. We are very glad we were able to make purchase, but we did not want to go so high in order to do it." The letter further stated, "If there is any more wools to be shorn around Kansas City," that defendant might be interested in purchasing it. The letter contained some other matters not necessary to mention, and was signed "St. Joseph Wool Company." It was headed, "G. F. Dahlenberg, St. Joseph Wool Company, St. Joseph, Missouri."

About May 18th or 19th defendant was notified that the wool was sacked and ready to be loaded at Emporia, whereupon he sent a representative to that city, who, upon inspecting the wool, reported to the defendant that it did not come up to the sample and the representations, and defendant refused to take it.

Plaintiff attempted to persuade defendant to take the wool under the contract of purchase but without avail, and on May 26th plaintiff wired defendant stating that he would give him until 2 o'clock of May 27th to take the wool, and that, if it was not accepted by that time, he would sell it to the highest bidder, "and hold you responsible for any loss." On May 29th, there being no market for wool in Emporia, and the nearest market being at Kansas City, Mo., plaintiff shipped the wool to M. Lyon & Co., a Kansas City commission company, and instructed it to sell the wool at 38 cents a pound. This concern unsuccessfully attempted to sell the wool at that price. Mr. Lyon of the commission company, testifying for plaintiff, stated, "We had a number of offers, but the prices that were offered did not equal the price fixed by Mr. Crawford of 38 cents. Consequently they were only potential offers." That the highest tentative offer he had was 35 cents.

On June 12th Lyon wired Crawford, who lived in Carlsbad, N. M., that he had received the tentative offer of 35 cents per pound. On June 13th plaintiff wrote the Lyon & Co. commission company acknowledging receipt of this telegram, and stating that "he would not sell under price agreed on." However, before this letter reached the commission company, the offer had been withdrawn. Subsequently, on July 28th, plaintiff sold the wool to M. Lyon & Co. so as to net him 30 cents a pound f. o. b. Emporia. The commission company bought the wool to sell to one of its customers. The exact amount it received for the wool is not shown, but Lyon considered that it made a profit of only the commission, which was from 1½ to 3 per cent.; the evidence not showing what the commission was in this instance. Plaintiff, therefore, received for the wool 31½ to 33 cents a pound, which Lyon stated equaled to 30 cents f. o. b. Emporia. Lyon further testified that plaintiff's price was 38 cents a pound, and that his company made an effort to get it, but could not, and to the effect that, if plaintiff had allowed his company to offer it at less than 38 cents, in all probability it could have sold the wool for more money than plaintiff finally received for it.

Baker testified that—

"At the time the wool was offered (by him) for sale there was much wool buying going on. We have sold buyers here, and at the time lots of sheep being shorn. This condition did not exist very long after that. Buyers all left. The wool market was then practically at a standstill. That was probably two weeks after this sale."

Lyon testified that the wool market advanced up to the 1st of June, but that during the time he had the wool for sale the trend of the market was lower. Defendant's witness Jones testified that there was an active demand for wool all during the months of May and June, 1922; that there was no sudden dropping off of buyers during those months, but that the slack came along the fore part of July. He stated that the monthly statistical summary of the Woolen & Worsted Industry showed that the market was slightly lower in June than in May, and that the decline reached its lowest in September. The price of wool at Kansas City and other places was fixed in relation to the Boston market. Defendant's witness Harper stated that the demand for wool during June. 1922, was good. Defendant testified to the same effect.

The verdict of the jury has settled the conflicting testimony in this case as to whether the wool was sold by sample and specific representations as" to quality or in the absence of sample and such representations, and there is nothing in defendant's contention that the demurrer to the evidence should have been sustained because the evidence shows that the wool did not come up to the alleged sample and representations.

As to defendant's insistence that there was no sufficient memorandum to meet the requirements of the statute of frauds, we think that the telegram that Harper sent to defendant on May 8th and the letter written by him to Baker's company the following day are connected by reference, impliedly at least, so as to show on their face that they related to the same subject-matter, and that these documents clearly disclose the names of the contracting parties, the subject-matter, and the price, and, therefore, that none of the essential terms required to constitute a sale was absent. Peirson-Lathrop Grain Co. v. Barker (Mo. App.) 223 S. W. 941; Leesley Bros. v. Pebori Fruit Co., 162 Mo. App. 195, 144 S. W. 138; Peycke Bros. v. Ahrens, 98 Mo. App. 456, 72 S. W. 151; United Securities Co. v. Tilley, 177 Mo. App. 113, 163 S. W. 281; Carter v. Western Timber Co., 184 Mo. App. 523, 170 S. W. 445. In the case last cited, at loc. cit. 529, 170 S. W. 447, the court said:

"It is always permissible to show the surroundings and circumstances of the contract, and it is sufficient, as against the statute of frauds, that, after the court is put in the same position as the parties themselves, the terms and subject-matter of the contract are made certain."

The parties are sufficiently disclosed in these two documents. Reading them together, it appears that defendant was the purchaser of the wool. We will hereinafter show that there was evidence that the St. Joseph Wool Company was the defendant; in fact, the telegram and letter themselves are some evidence of this. The...