Dick v. Puritan Pharmaceutical Co.

• Decision Date: 08 March 1932
• Docket Number: No. 21683.,21683.
• Citation: 46 S.W.2d 941
• Court: Missouri Court of Appeals
• Parties: DICK v. PURITAN PHARMACEUTICAL CO.

46 S.W.2d 941

DICK v. PURITAN PHARMACEUTICAL CO.

No. 21683.

St. Louis Court of Appeals. Missouri.

March 8, 1932.

Rehearing Denied March 22, 1932.

Appeal from Circuit Court, St. Louis County; Amandus Brackman, Judge.

"Not to be officially published."

Action by W. J. Dick against the Puritan Pharmaceutical Company. Judgment for plaintiff, and defendant appeals.

Affirmed.

Gus O. Nations, of St. Louis, for appellant.

George M. Rassieur, Alfred C. Wilson, and Charles R. Judge, all of St. Louis, for respondent.

SUTTON, C.

This is an action for damages, brought in the circuit court of St. Louis county, on September 27, 1927. The petition alleges that plaintiff is engaged in business, using the name and style of Chambers Medicine Company, and also the name and style of U. S. Cosmetics Company, and that defendant is a corporation engaged in the business of pharmaceutical chemists. On July 9, 1925, defendant contracted and agreed with plaintiff to compound and manufacture for him a cold cream face powder, according to a specified formula; that afterwards plaintiff purchased large quantities of said cold cream face powder from defendant, which plaintiff advertised and sold to his trade under the trade-names of "La Mode" and "La Florita," which were trade-names utilized by plaintiff in connection with the sale of face powder; that defendant fraudulently substituted inferior ingredients, not in accordance with the formula agreed upon, in the manufacture of said face powder, without the knowledge of the plaintiff, and, after selling said face powder, plaintiff received complaints from his customers in reference to the inferiority of the powder, and thereupon, in December, 1926, he caused a chemical analysis of the face powder to be made, whereupon he first discovered the face powder was not according to the formula agreed upon; that plaintiff purchased from defendant 5,707 pounds of the face powder in various lots; that, according to the formula, the face powder should have contained 3.71 per cent. of bismuth oxychloride, but contained only 1.09 per cent. of bismuth oxychloride, or a shortage of bismuth oxychloride content of 149 pounds, at $4 per pound, to the plaintiff's damage in the sum of $596; that plaintiff spent large sums of money advertising the face powder in an effort to sell the same, before he discovered that the defendant had fraudulently substituted inferior ingredients in the manufacture of the same; that plaintiff prepared and mailed letters and samples of the face powder to his trade and customers, and that, owing to the fraudulent substitution of materials, as aforesaid, the plaintiff has been compelled to abandon the sale of said face powder, and that the advertising letters and samples have been entirely useless, whereby the plaintiff has lost the cost of said advertising; that, owing to the fraud and deceit practiced by the defendant, the plaintiff's business has been greatly and permanently damaged, and plaintiff's customers have refused to have further dealings with plaintiff; that all of said damages were caused by the fraud and deceit practiced by defendant, as aforesaid, to plaintiff's damage in the sum of $20,000; and that the plaintiff's total damage amounts to $20,596.

The answer denies generally the allegations of the petition, and, by way of counterclaim, alleges that from March 1, 1925, to November 22, 1926, defendant sold and delivered to plaintiff on open account, divers and sundry articles of merchandise, and that the balance due on said account is $639.29, as shown by itemized accounts attached. The items of the account consist chiefly of La Florita cold cream powder and La Mode Sweet Pea powder.

The trial, with a jury, resulted in a verdict in favor of plaintiff on his cause of action for $2,000, and in favor of defendant on his counterclaim for $770.87, including interest. Judgment was accordingly given in favor of plaintiff for $1,229.13. Defendant appeals.

The evidence adduced at the trial showed that plaintiff was engaged as a jobber in the business of selling proprietary medicines and cosmetics, and sold face powder to the retail druggists over a large territory. In the spring of 1925 plaintiff told J. D. Ayars, president of the defendant company, that he desired to get out a new high-grade face powder for sale to his trade, and requested the preparation of a formula for such powder. It was suggested that the powder should be exactly like another cold cream face powder then on the market, known as Armand's face powder. Defendant agreed to analyze Armand's face powder and furnish plaintiff with a formula, and to manufacture for plaintiff a face powder in accordance with such formula. Accordingly, defendant prepared a face powder and furnished samples thereof to plaintiff, and some of the powder was delivered. After some delay, defendant furnished plaintiff the formula. The formula accompanied a letter dated July 9, 1925, in which defendant said: "Regarding the formula for cold cream powder, which has been so long delayed, will say that we are pleased to hand you same herewith. This is the formula same as we have used for you, the same as Armand's face powder." The formula inclosed with this letter showed, among other ingredients, 10 pounds of bismuth oxychloride to 270 pounds of powder. The evidence further shows that bismuth oxychloride is the most expensive ingredient in the face powder, and important, in that it gives the powder the property which makes it adhere to the face with a lasting effect.

The defendant never furnished the plaintiff with any formula except the formula furnished on July 9, 1925. Under the belief that the face powder was being manufactured according to the formula agreed upon, plaintiff purchased and paid the defendant for 4,400 pounds of face powder at the rate of 30 cents per pound, which amounted to $1,320. These purchases were made between April 10, 1925, and November 22, 1926, before the plaintiff discovered that fraud had been practiced upon him by the omission of the required content of bismuth oxychloride from the preparation. During this period the powder was extensively sold by plaintiff to his trade, under the name of La Florita cold cream face powder. It was the custom of plaintiff to travel his territory personally, calling upon his customers, largely retail druggists, once a year. In August, 1926, as the plaintiff was traveling, the customers to whom he had previously sold the powder seriously complained about the quality of the powder. These complaints became so numerous and bitter that in November, 1926, plaintiff employed an analytical chemist, to whom he submitted two separate samples of the powder defendant had furnished him. The analysis of the powder made by the chemist showed the content of bismuth oxychloride to be only slightly in excess of 1 per cent. whereas the formula requires a bismuth oxychloride content of 3.71 per cent. Upon the discovery of the deficiency of the powder in bismuth oxychloride content, plaintiff discontinued all purchases from defendant, and refused settlement for all goods previously delivered. Plaintiff confronted defendant with the analysis which had been made of the face powder. Defendant, then, by letter dated December 13, 1926, admitted to plaintiff that the powder furnished him was not in accordance with the formula, but stated that in some unaccountable manner defendant had furnished plaintiff with the wrong formula, and not the formula defendant had intended to furnish. At the time plaintiff showed by the chemical analysis that the powder was not manufactured according to the formula, Mr. Ayars admitted that the powder delivered to the plaintiff did not contain 10 pounds of bismuth oxychloride to 270 pounds of powder, but that it contained only an average of 3 pounds.

Plaintiff's evidence shows expenditures for preparing, addressing, and sending out samples of the face powder, for postage for mailing the samples, and for advertising the powder, by means of display signs or posters, under the trade-name of La Florita, and shows that, in addition to this loss, many of his customers refused to do further business with him because of the defective powder he sold them, and that there resulted a great falling off in his business, for which no other explanation existed except the defective quality of the powder which had been furnished his trade, and the injury his business had suffered by reason of his sale of an inferior product as a high-grade face powder.

Plaintiff testified that, after the formula was made up, Mr. Ayars checked the formula, as the formula under which the powder was then being manufactured, and noted in lead pencil in the margin what the ingredients would cost if plaintiff attempted to manufacture the powder himself. This formula, with pencil memoranda in the margin, was put in evidence, and shows, "bismuth oxychloride 10 pounds, 3.71 per cent, $40," the figures, $40, being in pencil.

Defendant assigns error upon the refusal of its instruction in the nature of a demurrer to the evidence. The ground of this assignment is that plaintiff totally failed to prove the cause of action pleaded in the petition, in that the petition alleges that defendant contracted to manufacture and furnish plaintiff a face powder according to a specified formula, and breached said contract by furnishing a face powder with a deficiency of bismuth oxychloride content, whereas the evidence shows that the contract was to furnish a face powder exactly like Armand's powder, and that there was no evidence to show that the powder furnished was not exactly like Armand's powder, in other words, that there was no evidence to show that Armand's powder contained 3.71 per cent. of bismuth oxychloride, as required by the formula furnished by defendant to plaintiff, or that it contained more bismuth oxychloride than was contained in the powder furnished. As a complete answer to this contention, it...