Etheridge v. Terry

• Decision Date: 08 January 1926
• Citation: 278 S.W. 1052
• Parties: ETHERIDGE v. TERRY. No. 3809.
• Court: Missouri Court of Appeals

278 S.W. 1052

ETHERIDGE v. TERRY. No. 3809.

Springfield Court of Appeals. Missouri.

January 8, 1926.

Appeal from Circuit Court, Jasper County; S. W. Bates, Judge.

Action by Walton B. Etheridge against Richard E. Terry. From a judgment for defendant, plaintiff appeals. Affirmed.

Owen & Davis and T. C. Tadlock, all of Joplin, for appellant.

Norman A. Cox and Hugh Dabbs, both of Joplin, for respondent.

BRADLEY, J.

This cause, in replevin, was tried before the court without a jury. The finding was for defendant, and plaintiff appealed.

Plaintiff, by the writ, took from defendant a stock of groceries, fixtures, etc., known as the Star Grocery Store at Carl Junction, in Jasper county. Plaintiff's cause is based upon the contention that he purchased the groceries, fixtures, etc., from the defendant, and that defendant delivered possession to him, and thereafter wrongfully got back in possession. Defendant's defense is based on the contention that the deal was never finally closed because plaintiff refused to pay the agreed price for the fixtures, and that he refused to accept less, and that since the deal was, in effect, to be cash on delivery, there was no title passed, and therefore there was no right to possession in plaintiff.

Plaintiff conducted a wholesale grocer house at Galena, Kan., and had extended credit to defendant. On October 21, 1923, defendant owed plaintiff a balance on a note of $2,736.57. For some time prior plaintiff and defendant had been talking trade, and on October 21st an invoice was taken of defendant's stock, fixtures, etc. According to plaintiff, he was to give defendant invoice price for the stock of groceries and $700 for the fixtures. According to defendant, plaintiff was to give him invoice price for both the stock and the fixtures. Payment was to be made by surrendering defendant's note, taking care of some current bills, and the balance in cash. On the theory that the trade was closed, defendant delivered the keys to the building to plaintiff's agent, and plaintiff, by his agent, conducted the store for two or three days. When it was apparent to defendant that plaintiff would not pay invoice price for the fixtures, he went to plaintiff's agent, and demanded the keys. The agent refused to deliver the keys, and defendant, on the night of October 24th, placed other locks upon the doors, and thereafter proceeded to conduct the store, and this cause in replevin immediately followed.

The stock, accounts, and $20 in cash, all of which went into the invoice, amounted to $4,185.69. The fixtures invoice amounted...