Electric Products Co. v. St. Louis Theater Supply Co.

• Decision Date: 02 June 1925
• Docket Number: No. 18771.,18771.
• Parties: ELECTRIC PRODUCTS CO. v. ST. LOUIS THEATER SUPPLY CO. et al.
• Court: Missouri Court of Appeals

273 S.W. 135

ELECTRIC PRODUCTS CO. v. ST. LOUIS THEATER SUPPLY CO. et al.

No. 18771.

St. Louis Court of Appeals. Missouri.

June 2, 1925.

Appeal from St. Louis Circuit Court; Wilson A. Taylor, Judge.

"Not to be officially published."

Action by the Electric Products Company against the St. Louis Theater Supply Company and another. From a judgment for plaintiff as against the named defendant only, plaintiff appeals. Reversed and remanded.

Leahy, Saunders & Walther and J. L. London, all of St. Louis, for appellant.

Lawrence McDaniel and F. E. Williams, both of St. Louis, for respondents.

BECKER, J.

This suit was filed in two counts, and grows out of the sale and shipment of two generator sets known as Rex-O-Lux machines, which are used for the purpose of converting alternating current to direct current in connection with moving picture projecting machines. The original purchaser was the defendant St. Louis Theater Supply Company, located at St. Louis. The other defendant, Exhibitors' Supply Company, took over the St. Louis Theater Supply Company some time prior to June 17, 1920, but after the St. Louis Theater Supply Company had ordered the machines in question. According to plaintiff's theory of the case, said Exhibitors' Supply Company not only took over the assets but assumed the liabilities of the defendant St. Louis Theater Supply Company, including the purchase of the said two generator sets, and, according to plaintiff, said Exhibitors' Supply Company thereafter, and prior to the filing of plaintiff's petition, adopted the said contracts as its own, but later on refused to accept the said machines, thereby breaching the contracts.

The defendant Exhibitors' Supply Company contends that it only bought the assets of the St. Louis Theater Supply Company, and did not assume the liabilities of the said company, and that it did not subsequently assume or adopt the contracts herein sued on.

There was a verdict and judgment for $183.65 on the first count, and for $223.23 on the second count, against the St. Louis Theater Supply Company, and a verdict and judgment in favor of the Exhibitors' Supply Company on both counts. Plaintiff appeals.

After a careful reading of the record we are satisfied that, whilst plaintiff made out a case for the jury as to both defendants, yet it was not entitled to a directed verdict as a matter of law. The question as to whether or not defendant Exhibitors' Supply Company, in purchasing the assets of the defendant St. Louis Theater Supply Company, took over its liabilities, including the orders here in controversy, or whether after such purchase the Exhibitors' Supply Company adopted and ratified the purchase of the said two machines, were questions of fact which properly should be submitted to the jury.

As to the instructions, complaint is here made that the trial court refused to give instructions numbered 1 and 2 in the form requested by plaintiff, but gave each of them in a modified form. A comparison of the instructions as originally requested, with the instructions as modified and given by the court, discloses that the instructions are the same, excepting that the court struck out that portion of each of the instructions which covered the measure of damages. Both instructions numbered 1 and 2 are correct so far as they go, but when viewed as modifications of plaintiff's requested instructions numbered 1 and 2, it is obvious that the court intended to add separate instructions on the measure of damages. An examination of all the instructions given, however, discloses that no such instruction was given.

Coupled with this omission to give an instruction on the measure of damages, we find the court gave instruction numbered 5...