George Gifford Company v. Willman

• Decision Date: 11 January 1915
• Parties: GEORGE GIFFORD COMPANY, Respondent, v. JOHN N. WILLMAN et al., Appellants
• Court: Kansas Court of Appeals

173 S.W. 53

187 Mo.App. 29

GEORGE GIFFORD COMPANY, Respondent, v. JOHN N. WILLMAN et al., Appellants

Court of Appeals of Missouri, Kansas City

January 11, 1915

Appeal from Buchanan Circuit Court.--Hon. C. H. Mayer, Judge.

Reversed and remanded.

Spencer & Landis for appellants.

(1) The court committed error in permitting plaintiff to sue on a contract of purchase alleged in the petition and to recover under said contract orally modified, which modification was not declared upon or alleged in the petition, the contract being required to be in writing under the Statute of Frauds. Goller v. Hensler, 161 S.W. 584; Wilt v Hammond, 165 S.W. 362. (2) The Statute of Frauds does not have to be pleaded, but it may be taken advantage of by objection to testimony under a general denial. Leesley Bros. v. Fruit Co., 162 Mo.App. 195. (3) To constitute an acceptance of goods under a contract of sale something more than mere words are necessary. Acceptance under a contract of sale comprehends both physical receipt and mental assent. 35 Cyc. 258, Benjamin on Sales (6 Am. Ed.), section 703; Edwards v. Railroad, 54 Me. 105; Calkins v Hillman, 47 N.Y. 449; In re George Hill Co., 123 F. 866. (4) As defendants did not receive and accept the cantaloupes and the cantaloupes furnished were not in compliance with the defendants' order for same, the defendants could not be held liable from any standpoint for more than their actual market value. Fritsch Fdry. Co. v Goodman Mfg. Co., 100 Mo.App. 414; Stamping Works v. Wicks, 144 Mo.App. 249, 260.

A. L. Timblin and Sam Wilcox for respondent.

(1) Appellants' so-called bill of exceptions is not properly identified as being the one filed in this case. There is nothing before this court but the record proper and the judgment should be affirmed. Miller v. Railroad, 145 Mo.App. 139, 140; Reno v. Jarrell, 163 Mo. 411; State v. Weingard, 168 Mo. 491; State v. Baty, 166 Mo. 561. (2) The case was tried throughout in the lower court by both plaintiff and defendants on the theory on which it was submitted to the jury, and defendants having adopted that theory and introduced its evidence in support thereof, and adopted that theory in both their given and refused instructions, cannot complain of the trial court's action in submitting the case to the jury as it did, but are bound thereby. 3 Cyc., pages 246, 247, 248, 253, 254, 255; Bowlin v. Creel, 63 Mo.App. 229, 234; McClanahan v. West, 100 Mo. 309, 322; Beilman v. Railroad, 50 Mo.App. 151, 156; Novelty Mfg. Co. v. Pratt, 21 Mo.App. 171, 173; Mitchell v. United Rys. Co., 125 Mo.App. 1, 11; Holzmer v. Railroad, 169 S.W. 102, 108. (3) The instruction on the measure of damages given by the court was correct. Ozark Lumber Co. v. Lumber Co., 51 Mo.App. 555, 561. (4) Defendants having asked no instruction on the measure of damages, cannot object to the one given. Beilman v. Railroad, 50 Mo.App. 151, 156; Geisman v. Electric Co., 173 Mo. 679; Childress v. Railroad, 141 Mo.App. 667, 690; Schlicker v. Gordon, 19 Mo.App. 479, 486. (5) The question of the Statute of Frauds must be called specifically to the attention of the trial court during the trial, and unless this is done by special answer or by specific objection to testimony on that ground, or by special instruction on that point, then it is waived and cannot be raised for the first time on motion for new trial as defendants have attempted to do in this case. Leesly v. Fruit Co., 162 Mo.App. 195; Schmidt v. Rozier, 121 Mo.App. 306; Young v. Branson, 99 Mo.App. 565; Ewart v. Young, 119 Mo.App. 483; Scharff v. Klein, 29 Mo.App. 549.

OPINION

TRIMBLE, J.

--Plaintiff and defendants entered into a contract whereby the former agreed to sell to the latter a carload of Northern California cantaloupes in standard crates and of choice quality at $ 2.75 per crate to be shipped and delivered to defendants at St. Joseph. The term "standard crates" in that business means that the melons shall be of a certain size. This suit is brought to recover the contract price thereof.

The petition alleges that the contract of sale was made, and that, under it, plaintiffs shipped a carload of 360 crates of cantaloupes at $ 2.75 per crate to defendants at St. Joseph and that the same were duly received and accepted by defendants, but that the latter, after receiving and accepting the melons, refused to pay for or unload the same, and several days later notified plaintiff that they would not pay for or unload them; that upon receipt of such notice plaintiff sold the cantaloupes for the benefit of defendants and applied the proceeds to defendants' credit; that by reason of defendants' delay in notifying plaintiff that they would not pay for said car, the melons became overripe and greatly depreciated so that they brought only $ 60.34 above freight charges, icing, demurrage, and cost of selling, and that after applying this amount and the freight and refrigeration charges up to the time of defendants' receipt and acceptance of said car (aggregating $ 292.30), on the contract price of the car ($ 990), left $ 637.36 due plaintiff for which judgment was prayed.

The answer was a general denial.

The contract, being for the sale of goods of more than $ 30, was required to be in writing unless the goods had been accepted and received by defendants. [Section 2784, R. S. 1909; Reigart v. Manufacturers Coal, etc., Co., 217 Mo. 142, 117 S.W. 61.] This the petition alleged. Plaintiff's evidence disclosed that the contract was in writing all right enough because it consisted of two letters, one from defendants ordering the melons and another from plaintiff's agents accepting and agreeing to fill the order. The contract thus made was simply that plaintiff would sell and deliver to defendants at St. Joseph, Missouri, a car of cantaloupes of the quality, at the price and packed as hereinabove stated. Defendants were to do nothing more than to pay the price on delivery. They were not required by the terms of the contract to do anything else or to assume any other burden in order to assist in bringing about a delivery. After thus establishing a written contract obligating plaintiff to make the delivery, the evidence showed, without dispute, that the car was billed to shipper's order, so that when the car arrived in St. Joseph, the title to the melons remained in plaintiff and did not pass. [Hunter Bros. Milling Co. v. Stanley, 132 Mo.App. 308, 111 S.W. 869.] The bill of lading did not arrive at St. Joseph until some days after the car did, consequently the arrival of the car at that point was not a delivery of the car to defendants, since they could not get possession of the car until they had obtained the bill of lading, duly endorsed to them, and present it to the railroad which held the melons. (It seems that, in cases where a person desires to obtain possession of freight billed to shipper's order but does not have possession of the bill of lading endorsed to him, this railroad will first assure itself that the bill of lading was not in town, and then require the one desiring to obtain possession of the freight to give a bond for twenty per cent over the value of the goods or to put up a certified check for ten per cent above the value thereof, and upon either of these requirements being complied with, deliver the freight without the bill of lading.) To prove delivery of the car, plaintiff introduced evidence of an alleged telephone conversation between plaintiff's agent and defendants' son and agent, John Willman, Jr., in which it was claimed that the latter agreed that defendants would put up a bond with the railroad company and get possession of the car in that way. Of course, this oral agreement, if entered into, was the addition of another element to the contract contained in the letters, namely, the obligation on defendants' part to put up the bond above mentioned. So that the contract established by plaintiff's evidence rests partly upon the letters and partly on parol evidence as to the telephone agreement. Defendant, therefore, claims that no recovery can be had because no action can be maintained upon a contract, required by the statute to be in writing, which rests partly in a writing and partly on parol evidence. Doubtless this may be true in a proper case and where the Statute of Frauds is interposed as a defense. But in this case, not only was no objection made to the introduction of the evidence of the telephone agreement but the Statute of Frauds was not invoked in any manner throughout the trial. It was mentioned for the first time in the motion for new trial. The defense of the Statute of Frauds is an affirmative one which is waived if not distinctly asserted, and it is too late to raise it for the first time in the motion for new trial. [Young v. Ledford, 99 Mo.App. 565, 74 S.W. 443; Ewart v. Young. 119 Mo.App. 483, 96 S.W. 420.] Unless the attention of the court is distinctly called to the Statute of Fraud in some way by the defendant during the trial so that the court may know that the statute is invoked, it will be treated as waived. [Schmidt v. Rozier, 121 Mo.App. 306, 98 S.W. 791.] So that all objections made by defendant on account of the Statute of Frauds are of no avail.

The car of cantaloupes were shipped from California, July 30th, and arrived in St. Joseph on August 7th. As stated, it was billed to shipper's order. Defendants' fruit inspector Wise,...