Eric City Iron Works v. Ferer

• Citation: 263 S.W. 1008
• Decision Date: 04 March 1924
• Docket Number: No. 18232.,18232.
• Parties: ERIE CITY IRON WORKS v. FERER et al.
• Court: Court of Appeal of Missouri (US)

263 S.W. 1008

ERIE CITY IRON WORKS v. FERER et al.

No. 18232.

St. Louis Court of Appeals. Missouri.

March 4, 1924.

Rehearing Denied June 6, 1924.

Appeal from Circuit Court, St. Louis County; G. A. Wurdeman, Judge.

"Not to be officially published."

Action by the Erie City Iron Works against Aaron Ferer and another. Judgment for plaintiff, and defendants appeal. Reversed and remanded.

Louis Mayer, Robert Burnett, and Irl B. Rosenblum, all of St. Louis, for appellants.

Grant & Grant, of St. Louis, for respondent.

BRUERE, C.

This is an action to recover the purchase price of a boiler alleged to have been sold and delivered to the defendants pursuant to a written contract of sale. Upon a trial had before the court and a jury there was a verdict and judgment for the plaintiff, and defendants have appealed.

The petition states, in substance, that on the 13th day of September, 1920, plaintiff and defendants entered into a contract wherein plaintiff agreed to deliver to the defendants, free on board cars at Erie, Pa., and the defendants agreed to purchase from the plaintiff, one Economic boiler, with grates and fittings, for the agreed price of $2,100, payment to be made 30 days from date of delivery; that said contract provided that time of delivery should date from the receipt by plaintiff of full details of the order, and that delivery should also be contingent upon delay caused by late mill deliveries or other hindrances beyond the control of plaintiff; that plaintiff did not receive full details of said order until September 23, 1920; that plaintiff also was delayed by late deliveries by the mill of the plate to be used in the manufacture of said boiler; that said plate was not delivered until October 12, 1920, whereas it might have been and should have been delivered on or about September 20, 1920; that plaintiff shipped the boiler, grates, and, fittings, in accordance with the terms of the contract, on November 30, 1920, and delivered the same to defendants free on board cars at Erie, Pa.; that said boiler was consigned to defendants at their place of business in St. Louis, Mo.; that defendants refused to accept the same; that thereby defendants became indebted to plaintiff in the sum of $2,100 on the 30th day of December, 1920; and that on said last-named date payment of the same was demanded and payment refused by the defendants.

The answer of the defendants was a general denial.

At the close of the plaintiff's case, and again at the close of the whole case, defendants, by their counsel, presented to the court, in writing, and requested the court to give to the jury, a peremptory instruction to find for the defendants, which said instruction was refused by the court.

One of the assignments of error made by defendants, appellants here, is that the trial court erred in refusing to give said instruction. In support of this point it is urged that the evidence adduced was not sufficient to sustain the allegations of the petition or to make out a case for plaintiff, in that the contract upon which plaintiff's case vitally rested was not introduced in evidence. In order to meet defendants' said contention, the plaintiff, respondent here, has filed in this court a so-called supplementary abstract, which is in words and figures as follows:

"As appellants do not print in their abstract of the record the contract between the partties or its terms, we give its pertinent clauses:

"Price. Twenty-one hundred dollars ($2,100.00) f. o. b. cars Erie, Penna.

"Terms. Net cash thirty days.

"Shipment. Within ten weeks.

"Time of delivery. Time of delivery to date from the receipt of full details of order and contingent upon delay caused by fire, strike, accident, late mill deliveries or other hindrances beyond our control."

Defendants have filed a motion to strike out plaintiff's supplemental abstract for the reason that the said matters in said abstract contained are not found in the bill of exceptions filed in this cause.

Inasmuch as counsel for plaintiff admit in their brief that the said contract was not offered or introduced in evidence, and since the same is not found in the said bill of exceptions, we are compelled to rule that defendants' said motion is well taken, and that the matters in said supplemental abstract, hereinbefore set out, be, and the same are, ordered stricken from the record herein.

Plaintiff's action is founded upon a written contract, alleged in its petition to have been executed by it and the defendants. The terms of this contract, upon which plaintiff's case vitally rests, are set up in the petition and denied by the defendants in their answer. Said terms were not proved, or admitted by* the defendants, at the trial. It follows, therefore, that the judgment, which purports to be based upon the contract has no foundation upon which to stand. Taylor v. Fuqua, 203 Mo. App. 585, 219 S. W. 971; Reed v. Nicholson, 158 Mo. 624, loc. cit. 631, 59 S. W. 977; Majors v. Maxwell, 120 Mo. App. 281, loc. cit. 285, 96 S. W. 731; State ex rel. v. Crumb, 157 Mo. 545, loc. cit. 561, 57 S. W. 1030.

Counsel for plaintiff, however, contend that defendant, "having tried the case on the theory that the contract was in evidence, and having persuaded the court to give instructions based on the contract, are estopped in this court from claiming that the contract was not introduced in evidence."

Plaintiff's said contention is bottomed solely on defendants' action in offering instructions which were based on the contract, and' which the trial court gave to the jury. We do not think that the giving of these instructions estops the defendants from claiming that the contract was not introduced in evidence.

This case does not fail within the rule that, where a party tries his case upon one theory, he will not be permitted to change his attitude and have his case retried upon a different theory in the appellate court. It will be noted that the defendants requested the trial court, at the close of the plaintiff's case and again at the close of the...