For v. Plant Seed Co.

• Decision Date: 07 June 1921
• Docket Number: No. 16675.,16675.
• Citation: 232 S.W. 169
• Parties: FORE v. SEED CO. et al.
• Court: Missouri Court of Appeals

232 S.W. 169

FORE v. SEED CO. et al.

No. 16675.

St. Louis Court of Appeals. Missouri.

June 7, 1921.

Rehearing Denied June 29, 1921.

Appeal from St. Louis Circuit Court; J. Hugo Grimm, Judge.

"Not to be officially published."

Action by Edwin Fore against the Plant Seed Company and another. From judgment for plaintiff, defendants appeal. Reversed.

Judson, Green & Henry, of St. Louis, for appellants.

R. B. Haughton, of St. Louis, for respondent.

DAUBS, J.

This is an appeal from the verdict and judgment of the circuit court of the city of St. Louis in favor of plaintiff for $309.25 for damages for breach of contract for the sale of cow peas. The contract resulted from correspondence between the parties, by the terms of which plaintiff agreed to ship 1,000 bushels of peas from Pittsburg, Tex., to be delivered f. o. b. St. Louis for $1.50 per bushel, the peas to correspond with the sample submitted and to be straight stock peas free from bugs. Plaintiff made a shipment of a part of this quantity, consisting of 634 bushels, on a shipper's order bill of lading, sending draft attached to the bill of lading to a local bank here in St. Louis. The pleadings raise the question, in the main, whether plaintiff complied with the contract as to defendant's privilege of inspection and delivery.

The evidence shows that when the car of peas arrived in St. Louis the railroad company refused to permit defendants to inspect same. Plaintiff admits that the waybill contained the notation "No inspection," and that this notation by mistake was placed on the waybill at Pittsburg, Tex., by the agent of the Cotton Belt Railroad.

The intercommunications on the question of inspection and delivery, when linked together, are: First, a postal card from the Terminal Railroad Association to the defendants (Franklin Commission Company), dated February 7, 1916, giving notice that the peas had arrived at that station on that day, designating the car and location, and containing the notation, "No inspection billed." Defendants on the same day telephoned the clerk of the railroad company concerning the matter of inspection, and received response that no inspection was billed. Application by defendants was again made to the chief clerk in the local Terminal office for the privilege of inspection, which was again refused. Terminal Railroad Association advised defendants that inspection could not be granted until authority was received from the Cotton Belt Railroad. Defendants on February 8th telephoned plaintiff at Pittsburg, Tex., that no inspection was allowed, and wrote plaintiff stating that the peas had arrived and that there was no inspection allowed, and that such failure of compliance with the terms and conditions of the sale made it necessary for defendants to refuse to accept this and all future deliveries on this contract. On that date (February 8th) defendants sent plaintiff either this or another telegram in which plaintiff was notified that defendants could not handle the shipment for the reason above set out. A like letter by defendants to plaintiff was sent on February 9th.

Defendants made repeated efforts to inspect the peas to see whether same corresponded with the sample from the time they were notified of the arrival of shipment to February 8, 1916, and up to the time defendants notified plaintiff by letter and telegram that the sale had been canceled. Thereafter defendants on February 11, 1916, in response to plaintiff's complaint that the shipment had been rejected, wrote plaintiff, which letter was received by plaintiff not until February 13, 1916, in which defendants again asked plaintiff for the privilege of inspection. And while plaintiff adduced no proof to show defendants were given opportunity to inspect, it was admitted by witness Plant for the defendants that information some time later was received by the Plant Seed Company from some source, probably the railroad company, that defendants might inspect the peas, but that such information came at the same time that they received information that the shipment had already been turned over by plaintiff to another commission firm in St. Louis for sale. The peas were, in fact, delivered by plaintiff to Harmon & Evans for sale. The date of this transaction is not fixed, except that the receipt of the railroad company for the freight given to Harmon & Evans was marked paid February 17, 1916. The only attempt by plaintiff to show when this shipment was withdrawn from defendants and placed in the hands of the Harmon firm is the inference that the goods were taken from the railroad company on the day the freight was marked paid. The plaintiff introduced a bill of lading, dated February 1, 1916, Pittsburg, Tex., in which he consigned the shipment to order of himself .(Edwin Fore) at St. Louis. The bill of lading bore the notation, "Allow inspection," which notation is also contained on invoice. Plaintiff also produced letter dated February 11th from defendants to plaintiff, which restates position taken in letter and telegram of February 8th, that inspection was refused defendants, and that for that reason transaction was canceled, and pointing out that no sale could be made without such compliance. The letter decries failure of plaintiff to comply with the request of the 3d and 8th to allow inspection, and again asks, "Why don't you authorize railroad company to let us examine contents?" and indicating that, even then if inspection were allowed, peas could be handled.

Plaintiff admits that peas were shipped on shipper's order bill of lading; that railroad agent at origin by mistake noted on waybill that there was to be no inspection allowed, but insisted that by the invoice and by the notation on bill of lading to the bank and by alleged direct authority from the railroad after the letter of defendants on February 11th, relied upon as a recantation of defendant's rescission, plaintiff complied with the contract; also that the railroad company was the agent of defendants.

In limine we might well consider appellant's insistence that there is no evidence in the case showing a compliance by plaintiff of the terms of the contract as to inspection and delivery of merchandise to be sold; for, if this assignment of error is sound, we need look no further to determine the propriety of a reversal of this judgment.

At the bottom of this controversy rests the elementary principle that, where goods are sold f. o. b. place of destination, to be delivered by seller to vendee, the carrier by which the goods are sent is the agent of the seller. 35 Cyc. 195, and cases cited.

Here the bargain was made on sample, a sample of the peas was submitted to the vendee at St. Louis, and the sale was made upon the condition that the bulk should correspond to the sample. Aside from the fact that defendants requested that the shipment should be subject to inspection, the vendee under these conditions had the right to inspect the peas to ascertain whether same were equal to the sample. And if the plaintiff, the vendor, failed to give defendants a reasonable opportunity for inspection, there was no delivery, and the defendants had the right to reject the goods. Hunter Bros. Milling Co. v. Wyatt Stanley, 132 Mo. App. 308, 111 S. W. 869; Central Flour Mills Co. v. Gateway Milling Co., 213 S. W. 131; Roaring Fork Potato Growers v. C. C. Clemons Produce Co., 193 Mo. App. 653, 187 S. W. 817.

The right of inspection in this case, however, seems to be conceded, but it is contended that such privilege, in so far as plaintiff is concerned, was afforded defendants. The plaintiff was to deliver the goods to the defendants at St. Louis, and the goods were to correspond with sample. Defendants had the right of inspection. The agent at the point of origin billed the merchandise with the direction...