Dinuba Farmers' Union Packing Co. v. J. M. Anderson Grocer Co.
| Decision Date | 08 February 1916 |
| Citation | 182 S.W. 1036,193 Mo.App. 236 |
| Parties | DINUBA FARMERS' UNION PACKING COMPANY, Appellant, v. J. M. ANDERSON GROCER COMPANY, Respondent |
| Court | Missouri Court of Appeals |
Appeal from St. Louis City Circuit Court.--Hon. Rhodes E. Cave Judge.
REVERSED AND REMANDED.
Judgment reversed and cause remanded.
Henry H. Furth for appellant.
(1) The petition states a good cause of action and the evidence tends to establish all the allegations of the petition. In passing upon a motion for a nonsuit, the plaintiff's evidence must be taken as true. Not only must the plaintiff's evidence be so taken, but in addition thereto, he is entitled to every reasonable inference in his favor that can be drawn from the facts proved. The court is not at liberty in such case to raise any countervailing inferences to defeat the action. Holloway v. Kansas City, 184 Mo. 29; Pauk v. St. L. Dressed B. & P. Co., 159 Mo. 467; Natl. Bk. Commerce v. Am. Exch. Bank, 151 Mo. 329; Gratiot v. Railroad Co., 111 Mo. 456; Frick v Railroad Co., 75 Mo. 601; Buesching v. St. L. Gas Light Co., 73 Mo. 231; Wilson v. Board of Education, 63 Mo. 140. (2) Plaintiff is not precluded from maintaining this action by reason of being a foreign corporation. Its transactions are interstate commerce protected by the Federal Constitution to which State law is not applicable. International Text Book Co. v. Gillespie, 229 Mo. 397; Butler Bros. Shoe Co. v. U. S. Rubber Co., 156 F. 1; J. R. Watkins Med. Co. v. Holloway, 168 S.W. 290; Mergenthaler Linotype Co. v. Hays, 168 S.W. 239. (3) Plaintiff is entitled to sue on the contract, notwithstanding it may not be the sole, or even the actual, owner of the goods sold. (a) It is a party to the contract. The evidence shows that Tooker, O'Brien & Company, the ostensible vendor, was acting in behalf of the plaintiff. Parol evidence is competent to show this. Haubelt Bros. v. Rea & Page Mfg. Co., 77 Mo.App. 672; Donnell v. Lafferty, 113 Mo.App. 282, 292; Hunter v. Giddings, 97 Mo. 41; Williams v. Bacon, 2 Gray (Mass.) 387; White v. Dahlquist Mfg. Co., 60 N.E. 791, 179 Mass. 427. (b) Assuming that the plaintiff was not the absolute owner of the goods sold, it was in any event a factor selling the goods of its principal as its own and entitled to sue in its own name on contracts so made. Mechem on Agency, sec. 1039, p. 852; Atchison v. Railroad Co., 80 Mo. 213; Howsman v. Trenton Water Co., 119 Mo. 304; Wolfe v. Mo. Pac. Ry. Co., 97 Mo. 473; Coggburn v. Simpson, 22 Mo. 351; Keown v. Vogel, 25 Mo.App. 35; Montgomery v. Gann, 51 Mo.App. 187, 191; Morrell v. Koerner, 51 Mo.App. 592, 598. (4) The memorandum was sufficient to satisfy the Statute of Frauds. It contained all the terms of the contract and was sufficiently signed. (a) It was signed by the broker who is competent to make a valid memorandum to bind his contracts. Coddington v. Goddard, 16 Grey (Mass.) 436, 442; Greeley Burnham Co. v. Capen, 23 Mo.App. 301; J. K. Armsby Co. v. Eckerly, 42 Mo.App. 299; Peabody v. Speyers, 56 N.Y. 230; Newberry v. Wall, 84 N.Y. 576, 580; 20 Cyc., page 256; Butler v. Thompson, 92 U.S. 412. (b) A printed signature is sufficient under the statute. Benjamin on Sales (6 Bennett Ed.), sec. 256, p. 213, sec. 259, p. 215; Browne Statute of Frauds, sec. 356, p. 485; Saunderson v. Jackson, 2 Bos. & Puller 238; Tourret v. Cripps, 48 L. J. Ch. 567; Anderson v. Wallace L. & Mfg. Co., 70 P. 247; Schneider v. Norris, 2 Maule & Sel. 288; Higdon v. Thomas, 1 Harris & Gill (Md.) 152; Drury v. Young, 58 Md. 546; Com. v. Gray, 3 Gray (Mass.) 417; Lerned v. Wannemacher, 9 Allen (Mass.) 417. (c) The signature may appear at the head of the memorandum. Benjamin on Sales (6 Bennett Ed.), sec. 259, p. 215; Saunderson v. Jackson, supra; Knight v. Crockford, Espinasse N. P. 190; Lobb v. Stanley, 8 Jurist 462; Johnson v. Dodgson, 2 M. & W. 653; Tourret v. Cripps, supra. Sawyers v. Patterson, 2 Weekly Notes Cases 334; Penniman v. Hartshorn, 13 Mass. 87. (5) There is direct testimony that broker's bought and sold notes, identical in form with the broker's memorandum, were delivered to both buyer and seller. On the question of nonsuit, this is conclusive upon the court. If the court were permitted to draw counterinferences from the evidence, it would violate one of the essential rules of law. The fact that blanks were left on the contract, which might have been, but were not, signed by the parties, does not warrant the inference that they were intended to be signed, particularly in the face of evidence that the memorandum was delivered as such. If there was any doubt whether or not the memorandum was delivered as such, the question should have been submitted to the jury. The court had no power to declare as a matter of law that the memorandum was not delivered as such, because that would involve the question of intent, which is always for the jury. Browne, Stat. Frauds, sec. 354, p. 481; Thayer v. Luce, 22 Ch. St. 62; Sanborn v. Sanborn, 7 Gray (Mass.) 142; Knight v. Crockford, 1 Esp. 190; Durrell v. Evans, 1 Hurlstone & Co. 174; Johnson v. Dodgson, 2 M. & W. 653; Tourret v. Cripps, 48 L. J. Ch. 567; Hawkins v. Chace, 19 Pick. (Mass.) 503. That fact that blanks appeared in the memorandum for signature, which were not filed by the parties and therefore did not make the instrument a contract, does not render it incompetent as a memorandum. An instrument which is intended to operate as of a higher nature, but is insufficient for that purpose may be available as a simple memorandum. Browne, Stat. Frauds, sec. 354a, p. 482; Evans v. Ashley, 8 Mo. 177, 187; Evans v. Prothero, 1 DeG. M. & G. 572; Thayer v. Luce, 22 Ohio St. 62.
Holland, Rutledge & Lashly for respondent.
(1) Plaintiff cannot maintain this action in our court, as it is a foreign corporation doing business in Missouri without the license required by Secs. 3039, 3040, R. S. 1909. Fay Fruit Co. v. McKinney Bros. & Co., 103 Mo.App. 304; Wilson-Moline Buggy Co. v. Priebe, 123 Mo.App. 521; Ellis Lumber Co. v. Johns, 152 Mo.App. 516, 519; Farrand v. Walker, 169 Mo.App. 602, 604; Bennett's Testimony, Trans. pp. 41, 69-72. (2) The memorandum is insufficient to satisfy the Statute of Frauds. (a) The instruments offered in evidence were merely invoices. (b) As memoranda they are incomplete, not having been signed by the party to be charged or his lawfully authorized agent. Drury v. Young, 58 Md. 546, 554. (c) The burden of proving agency is upon the one who would charge another as principal with the act of the alleged agent. Plummer v. Knight, 156 Mo.App. 321; Knoche v. Whitman, 86 Mo.App. 568. (d) Rosen-Reichardt were not brokers, but agents acting solely for Tucker-O'Brien, and as such agents they had no authority to make a binding memorandum on behalf of defendant. Murphy v. Boese, L. R. 10 Ex. 126, 131, decided 1875; Hinckley v. Arey, 27 Mo. 362; Strong v. Dodds, 47 Vt. 348; Wilson v. Lewiston Mill Co., 150 N.Y. 314; Coddington v. Goddard, 16 Gray 442. Where a place for signature is specially indicated by a blank line between the words, "Accepted, --- Buyer," the name of the party to sign appearing in the body of the instrument does not constitute a signing. Jones v. Gurlie, 61 Miss. 423. (3) There was no tender of the proper amount and quality, and until such tender is made there is no liability on the part of the vendee for failure to accept the goods, or for failure to pay the contract price. Allen v. Pennell, 51 Ia. 539; Cash v. Hinkle, 36 Ia. 627; Hoffman v. King, 58 Wis. 318; McPherson v. Gale, 40 Ill. 370.
--This is a suit by the vendor for damages accrued on account of a breach of contract of sale. At the conclusion of the evidence the court directed a verdict for defendant, and plaintiff thereupon suffered an involuntary nonsuit. It filed a motion in due time to set the nonsuit aside, but this the court overruled, and, on exception duly saved, the appeal is prosecuted here by plaintiff.
Plaintiff is a corporation organized and existing under the laws of the State of California and engaged in the business of drying and selling fruits. Tooker O'Brien & Company is plaintiff's selling agent in San Francisco, and through the latter it is said plaintiff sold eight hundred fifty-pound boxes of raisins to defendant--that is, six hundred boxes 2 crown L. M. Raisins and two hundred boxes of 3 crown L. M. Raisins. The sale was negotiated by Rosen-Reichardt Brokerage Company of St. Louis, Missouri, to defendant, J. M. Anderson Grocer Company, of and in the same city.
It appears that plaintiff, a foreign corporation, is not qualified to do business in the State of Missouri--that is it had not been licensed by the authorities here. It is argued, in view of this, that the court very properly directed a verdict for defendant, because, in such circumstances, plaintiff was not entitled to sue under our laws. But it appears the transaction involved here falls within the category of interstate commerce, rather than that of doing business in Missouri. Plaintiff maintained no business establishment here. It neither stored nor paid for the storage of goods nor carried any stock on hand here, save an occasional car of dried fruits on consignment to its brokers, for sale by the broker on plaintiff's account. It appears Rosen-Reichardt Brokerage Company received an offer from defendant on eight hundred boxes of raisins and wired the proposal to Tooker O'Brien & Company in San Francisco, whereupon the Tooker O'Brien Company confirmed the prices made and the sale was thereupon consummated by the broker to defendant for the account of plaintiff. The raisins were thereafter shipped forward under a bill of lading made to plaintiff's order, "notify the Rosen-Reichardt Brokerage...
To continue reading
Request your trial