Ford v. Dyer

• Decision Date: 07 March 1899
• Citation: 49 S.W. 1091,148 Mo. 528
• Parties: Ford v. Dyer, Appellant
• Court: Missouri Supreme Court

49 S.W. 1091

148 Mo. 528

Ford v. Dyer, Appellant

Supreme Court of Missouri, Second Division

March 7, 1899

Appeal from St. Louis City Circuit Court. -- Hon. P. R. Flitcraft Judge.

Affirmed.

John W Kerr and Carter & Sager for appellant.

(1) The agreement made no absolute contract for the sale of the machines. The agreement made no absolute contract for the sale of the territory, or the use of the patents therein. Nothing was created by the agreement, more than an experimental option for one year, during which time, the defendant might experiment, at his own expense, on the machines in the territory. (2) The sending of the letter dated September 20, 1895, and October 9, and the same being received by plaintiff, ended the option, by act of defendant under the terms of the agreement. (3) The agreement being merely an experimental option, either party could withdraw at any time. (4) No money was to be paid to plaintiff, until he gave bond in the sum of $ 2,500, and by neglecting or refusing to give such bond, he virtually withdrew the option. Klee v. Grant, 23 N.Y.S. 855. (5) The court rejected competent evidence going to show that the defendant had withdrawn from the agreement, before the end of the year. Mayer v. Allison, 109 Ill. 180; Johnson Co. v Wood, 84 Mo. 489; Callaway v. Henderson, 130 Mo. 77; Ellerbe v. Barney, 119 Mo. 632; Webb v. Protection Ins. Co., 14 Mo. 5; Carter v. Arnold, 134 Mo. 195; Belch v. Miller, 32 Mo.App. 387; Schickle v. Chouteau, Harrison & Valle, I. Co., 10 Mo.App. 241; Bank v. Haywood, 62 Mo.App. 550; Carney v. Chillicothe Water Co., 16 Mo.App. 577; Wharton on Contract, secs. 657-662.

George E. Smith and Johnson, Houts & Marlatt for respondent.

(1) The title to the territory passed upon its execution, and the title to the machines passed upon delivery, subject only to the right of the vendee to rescind the sale within the time and in the manner stipulated. The contract falls within that class of conditional sales known to the law as "sale or return." The purchaser can sell and convey good title to the goods, either within the time fixed for his election, or afterwards. The seller can not maintain replevin for the goods, either before or after the time given the purchaser to rescind the sale. His only remedy, if the condition has not been complied with, is a suit against the vendee for the price. Prairie Farmer Co. v. Taylor, 69 Ill. 440; Dewey v. Erie Borough, 14 Pa. St. 211; Jameson v. Gregory, 4 Metc. (Ky.) 363; Dearborn v. Turner, 16 Me. 17; Waters Heater Co. v. Mansfield, 48 Vt. 378; McKinney v. Bradlee, 117 Mass. 321; Spickler v. Marsh, 36 Md. 222. (2) The letter of September 20, 1895, pleaded in the answer, and offered in evidence to show notice of defendant's election to annual and cancel the contract, was properly excluded. Being a written instrument offered by defendant to show notice within the terms of the contract sued on, it was for the court to determine whether or not it tended to show such notice. The letter was, in effect, an application for an extension of time. Crescent Mfg. Co. v. Nelson Mfg. Co., 100 Mo. 335. (3) At the close of the evidence there was nothing for the jury to pass on. The defendant had at the trial admitted that he had received and still retained possession of all the machines sued for in the first count of the petition. The price he was to pay was fixed by the contract, and his admission in regard to the machines claimed in the petition, where the number, size and price were specifically itemized precluded dispute on those points. The price he was to pay for the territory at the end of the year, was also fixed by the contract. He had failed to prove a rescission of the contract within the year. There was no evidence or issue of fact left to be submitted to a jury. The court, therefore, properly gave the peremptory instruction to find for the plaintiff the full amount claimed in the first count of the petition. Wolff v. Campbell, 110 Mo. 114.

BURGESS, J. Gantt, P. J., and Sherwood, J., concur.

OPINION

BURGESS, J.

This is an action for damages for the breach of a written contract entered into between plaintiff and defendant on the twentieth day of November, 1894.

Plaintiff, having the right and privilege to dispose of state or territorial rights, to make, vend and deal in a certain kind of "gas regulator" and "gas governor" under patents numbers 367,801 and 498,543, by virtue of certain letters patent issued to him out of the patent office of the United States, entered into a written contract with defendant, substantially as follows:

"The party of the first part (Archibald Ford) does hereby bargain and sell, assign, grant and convey to the party of the second part, his heirs and assigns, the exclusive right to sell, rent and use the said regulator and governor, device and contrivance, together with all alterations, improvements and renewals that may be made thereon or thereof, in the city and county of Saint Louis, Missouri, with the further privilege, concurrent with the said party of the first part, but not exclusive, of selling, renting and using the same in the State of Missouri, excepting the cities of Kansas City and Saint Joseph, for the whole time or term of the life of said patents and any alterations, improvements and renewals thereof or thereon that may hereafter be made.

"All regulators, governors, machines and devices are to be paid for on their delivery in Saint Louis, Missouri, freight to be paid by said second party, at the following prices:

5 Light Regulators

$ 2.25 each

10 Light Regulators

3.25 each

20 Light Regulators

4.25 each

45 and 60 Light Regulators

5.25 each

80 and 100 Light Regulators

8.00 each

150 and 200 Light Regulators

10.00 each

250 and 300 Light Regulators

12.00 each

"A reduction and allowance of ten per cent shall be allowed on said prices, but no payment shall be demanded or due and payable on said machines until the bond herein set forth is executed and delivered to said second party, his heirs and assigns. The party of the first part agrees to furnish all the machines ordered by said second party and deliver them in Saint Louis within fifteen days from receipt of said order, or as soon as possible thereafter, to any amount or number that may be required and ordered by said second party he paying freight.

"If desired, the party of the first part, shall furnish the services of B. B. Coleman or a Mr. Irwin or some other competent person skilled in the business, to superintend the working and placing of the machines and using the same, the party of the second part to pay said person in full for his services the sum of seventy-five dollars per month for the time so occupied by him. The first party agrees that no machines under or of the Ford patent shall be sold, used or rented in the territory of the city and county of Saint Louis, in which said second party has the exclusive right. It is expressly agreed that if at any time within one year from the date hereof the party of the second part may notify the party of the first part, by a letter postpaid and directed to Archibald Ford, Oakland, California, and placed in the postoffice in Saint Louis, Mo., of his election to annul or cancel this contract, it shall stand canceled, it being the object hereof to give the party of the second part an experimental option for the space of one year to test the value and working of said machine. In the event that within one year from the date hereof said second party signifies in the manner aforesaid his election to annul this contract, and not to proceed further thereunder, the party of the first part shall forthwith pay and refund to him all the moneys paid for machines or devices up to that date, and the party of the second part shall promptly turn over to the first party, he having performed his part hereof, all machines or devices including the fittings and quick-silver therein at the time. It being however understood that none of said machines shall be sold till said second party elects to take said territory, and money actually paid shall be accounted for at the price paid said first party for said machines, and all other moneys collected shall be retained by said second party. After such notice and accounting, the whole contract shall cease and each party shall stand fully discharged. It is expressly understood and the party of the first part agrees to forthwith furnish and deliver to said second party, a bond in the sum of $ 2,500, or more if necessary, to refund to him promptly all moneys paid for machines on demand in case of election to rescind this contract above set forth.

"In the event that at or before the end of one year from this date, said second party elects to continue the business and shall so signify to the first party, then all the agreements herein shall become permanent and binding and this contract shall remain and be in full force in and during the life of said patents and all alterations, improvements and renewals thereof and the said second party shall pay to the first party $ 2,500 in consideration thereof."

The petition is in two counts, the first in assumpsit for the price of the machines and the territory sold; the second in trover for the conversion of the machines, fittings and quicksilver.

The first count in substance alleged the execution of the written contract, the sale of the territory specified, the furnishing by plaintiff to defendant on his order between November 20 1894, and September, 1895, of a large number of the machines in question, giving the date, number, size and price, amounting at the price fixed by the contract to the sum of $ 2,101.25, no part of which had been paid; pleaded performance of the conditions of the contract by plaintiff except the...