G. Amsinck & Co. v. Kellum Co.

• Decision Date: 24 January 1927
• Docket Number: No. 15598.,15598.
• Citation: 290 S.W. 616
• Parties: G. AMSINCK & CO., Inc., v. KELLJM CO.
• Court: Missouri Court of Appeals

290 S.W. 616

G. AMSINCK & CO., Inc., v. KELLJM CO.

No. 15598.

Kansas City Court of Appeals. Missouri.

January 24, 1927.

Appeal from Circuit Court, Jackson County; O. A. Lucas, Judge.

Action by G. Amsinck & Co., Inc., against the Kellum Company. Judgment for plaintiff, and defendant appeals. Affirmed.

M. J. Kilroy, Henry S. Conrad, L. E. Durham, and Hale Flouts, all of Kansas City, for appellant.

W. S. McClintock, A. L. Quant, and Frederick K. Ferguson, all of Kansas City, for respondent.

BLAND, J.

This is an action for damages for breach of contract, suffered by plaintiff by reason of the refusal of defendant to accept 600 bags of coffee purchased from the former by the latter. There was a verdict and judgment in favor of plaintiff in the sum of $800.89, and defendant has appealed.

The evidence shows that plaintiff was a corporation engaged in the coffee trade with an office at San Francisco; that defendant was a corporation located at Kansas City, Mo., and engaged in the business of roasting con'ee and the manufacture and selling of kitchen equipment for restaurants and hotels. Plaintiff's evidence tends to show the following: That C. E. Bickford & Co. were general coffee brokers located at San Francisco, Cal., and the regular San Francisco brokers of plaintiff, but operated as selling agents for numerous other importing and jobbing coffee firms of San Francisco; that one Rouse was a coffee broker located in Kansas City, Mo., and had been engaged in that business at that place for more than 18 years prior to the happening of the matters giving rise to this lawsuit and had transacted business with the defendant during practically all of the 18 years previous to such time; that Rouse was the Kansas City representative of C. E. Bickford & Co.

About November 10, 1919, defendant was in the market for a certain kind of coffee known to the trade as Robusta coffee, and its agent, Henry D. Kelly, called upon Rouse to furnish him with samples and prices of such coffee, which Rouse did; the price quoted defendant by Rouse being 20½ cents per pound. These samples had been previously furnished by C. E. Bickford & Co. to Rouse in order that buyers desiring to buy coffee through Rouse might make a selection "against which offers would be made." On November 10, 1919, defendant, having been unable to get in touch with Rouse over his phone on account of its being out of order, wrote the latter that it would buy 1,000 bags of Robusto "at 20 cents f. o. b. Frisco." Evidently the purchase of this quantity of coffee had been talked over by Rouse and defendant prior to this time. When Rouse received this letter from defendant, he called upon Kelly concerning the matter and showed him sample No. 7920 of Robusta coffee and defendant made a verbal offer to him to buy 1,000 bags of the coffee at 20 cents per pound. Rouse testified that it had been customary in the coffee trade to receive verbal offers from buyers of coffee and submit the offer to the seller verbally or through correspondence or telegrams according to the circumstances.

On November 11, 1919, Rouse telegraphed defendant's offer to C. E. Bickford & Co. at San Francisco and on the same day the said company wired Rouse that washed Robusta was bringing 2½ cents and offering to sell such coffee of the grade shown by certain samples mentioned in the telegram by number at 21½ cents per pound. This message was submitted to defendant by Rouse and Kelly made Rouse an oral offer to buy an 80,000-pound carload of coffee, consisting of 600 bags at 21½ cents per pound, of the grade of one of the samples mentioned in the telegram. On November 12 this offer was submitted by Rouse to C. E. Bickford & Co. by wire and on the same day C. E. Bickford & Co. wired to Rouse accepting the proposition to sell the coffee on the terms indicated. Upon receipt of this wire Rouse telephoned defendant that C. E. Bickford & Co. had "confirmed purchase according to their offer." There is no testimony as to what, if any, reply was made by defendant. Rouse then prepared in triplicate what he in his testimony termed bought and sold notes, reading as follows:

"Eugene P. Jones, N. P. Perrin D. Rouse, Coffees, 505 Brokers' Building, Kansas City, Mo., 11/12/19. Sold to the Kellum Company, Kansas City, Mo., for account C. E. Bickford & Co. (Agts.) San Francisco, Cal. M. V. C. 600 B/C A C I—Robusta @ 21½c A Terms: Cash less 2%. Draft at one day's sight against documents T11 B San Francisco, Cal. Ship Santa Fé. Perrin D. Rouse."

One copy of this instrument was transmitted to C. E. Bickford & Co., one to the defendant, and one was retained by Rouse. Rouse testified that he had followed this procedure in reference to making and transmitting such memoranda ever since he had been in the brokerage business and that it was the customary procedure among all brokers; that he had followed the same procedure in his transactions with defendant.

On November 12, 1919, C. E. Bickford & Co., as brokers, in the ordinary course of their brokerage business, issued similar bought and sold notes, sending a copy thereof to the defendant, another copy to the plaintiff, a third copy to Rouse, and retaining the fourth copy for its files. These sales memoranda issued by C. E. Bickford & Co. disclosed plaintiff as the actual seller. On November 13, after the issuance of the memoranda aforesaid and after delivery of them to defendant, defendant informed Rouse that it would not accept the "purchase for their account on November 12 at 21½ cents per pound, but would buy same chop (lot of coffee) at 20½ cents." After this a number of telegrams passed between Rouse and Kelly (the latter being out of the city), the substance of which was wired by Rouse to C. E. Bickford & Co., the purport of these wires being that the defendant would not accept the coffee at a higher price than 20½ cents per pound. Plaintiff refused to agree to this price and defendant finally refused to take the coffee at all, but on November 20, 1919, purchased 600 bags of Robusta coffee at San Francisco at 20½ cents per pound.

The market price of coffee at San Francisco during this time was fluctuating. On November 12 it was 21½ cents per pound, but on November 13 it declined to 201 cents. The same lot of coffee that had been sold to defendant was afterwards, on December 2, 1919, sold by plaintiff to J. A. Folger & Co. of Kansas City for 20¼ cents per pound, and this suit is brought to recover the loss suffered by plaintiff on account of having been required to sell it at less than the contract price.

The only evidence introduced on behalf of defendant was the testimony of Mr. Kelly, to whom we have already referred. He testified that he had been in the coffee business in Kansas City for 25 years; that his company was in the market for a certain kind of coffee known as Robusta, and it called upon Mr. Rouse to furnish it with samples and prices, which the latter did; that Rouse's price was 20½ cents. Kelly offered 19½ cents per pound for a 600-bag lot. The next afternoon Rouse again came to defendant's place of business, asking for an advance of one cent a pound, stating that the price then was 21½ cents and that "it was a regular boom as he called it; the lowest that he could possibly buy the coffee at." Kelly further testified that he was getting ready to leave the city for the East, which Rouse knew, and that he told the latter that he was in a hurry to make the purchase before he left for New York, and as Rouse represented that there was an advance of a cent a pound, and it was useless to bid anything less, that the witness finally told him: "All right; T will take it." When the witness got to Chicago he found out the prevailing market price of coffee. The witness testified that he at no time confirmed any telegram or any contract with C. E. Bickford & Co. for 600 bags of Robusta coffee and at no time had any dealings with plaintiff or the Bickford Company, but admitted receiving the wire at New York from Rouse stating that the Bickford Company had declined to cancel defendant's acceptance of the purchase of 600 bags of Robusta coffee at 21½ cents per pound, and that he wired Rouse that, unless he had confirmation of his offer of 20½ cents, he would buy coffee in New York, and that about a week later he purchased the coffee from Levi & Sons of San Francisco for 20½ cents per pound. He was not asked and did not testify as to whether defendant received the memorandum (the bought and sold note) sent defendant by Rouse.

The petition alleges that a written contract was entered into on November 12, 1919, between the parties, made on behalf of the plaintiff by C. E. Bickford & Co. and on behalf of the, defendant by Perrin D. Rouse, a broker in Kansas City, who was alleged to have been the agent of the defendant and duly authorized to make the contract. The answer was a general denial. It is insisted by the defendant that the court erred in failing to sustain defendant's demurrer to the evidence for the reason that no contract or memorandum was signed by any one having authority to bind defendant; that the purchase price of the amount of coffee in question was in excess of $30 and plaintiff undoubtedly recognized that the sale was within the purview of the statute of frauds, as it charged in its petition that a written contract was entered into.

We think there is no question but under the undisputed testimony Rouse was defendant's agent for the purpose of executing the memoranda of the sale of the coffee on behalf of defendant. It was stated in Packing Co. v. Grocer Co., 193 Mo. App. 236, 245, 182 S. W. 1036, 1038:

"The evidence tends to prove that the Rosen-Reichardt Company, Incorporated, is a broker engaged in selling fruits for commission. But it is argued on the part of defendant that the brokerage company is plaintiff's agent. So much may be conceded in a sense, but not in the view urged here. There is, perhaps, slight evidence in the record affording...