Glasgow Milling Co. v. Burgher

• Decision Date: 05 November 1906
• Citation: 97 S.W. 950,122 Mo. App. 14
• Parties: GLASGOW MILLING CO. v. BURGHER.
• Court: Missouri Court of Appeals

97 S.W. 950

122 Mo. App. 14

GLASGOW MILLING CO. v. BURGHER.

Kansas City Court of Appeals. Missouri.

November 5, 1906.

Rehearing Denied December 3, 1906.

1. FRAUDS, STATUTE OF — SALES OF GOODS — SUFFICIENCY OF WRITING—PRICE.

A memorandum of a sale of merchandise, which does not state the price is insufficient under the statute of frauds.

2. SAME—PLEADING STATUTE AS DEFENSE.

In an action for the price of goods sold, an answer, denying the contract, authorizes defendant to invoke the statute of frauds.

3. SALES—DELIVERY—TIME FOR DELIVERY.

Where a contract for the sale of goods fixes no time for delivery, a reasonable time is implied.

4. SAME—IMPLIED WARRANTY—QUALITY.

On a sale of flour by a miller, there was an implied warranty that it should be delivered in a merchantable condition.

5. SAME — ACTION FOR PRICE — CONDITIONS PRECEDENT.

Where the seller of goods took them back after the purchaser's refusal to accept, and it did not appear that he kept the goods as the purchaser's, he could not maintain an action for the price.

Appeal from Circuit Court, Schuyler County; Nat M. Shelton, Judge.

Action by the Glasgow Milling Company against John Burgher. From a judgment in favor of plaintiff, defendant appeals. Reversed.

C. C. Fogle, for appellant. Higbee & Mills, for respondent.

ELLISON, J.

Plaintiff's cause of action, as stated in the petition, is founded on its sale to defendant of a lot of flour and meal for the sum of $222.75, and that defendant afterwards refused to receive or pay for it. The trial court gave a peremptory instruction to the jury to return a verdict for the plaintiff, and the defendant has brought the case to this court.

It appears that defendant is a merchant at Coatsville and plaintiff is a milling company at Glasgow, Mo.; these places being about 80 miles from each other, and that they are connected by the Wabash Railway. Defendant made the following written order for the flour: "Coatsville, Missouri, 11-17-03. Please ship me 110 sack Crown High Pt. 40 sack Extra Pt., 30 sack Extra Fancy. 30 sack Eagle, 25 sacks of bolted meal. Ship at once. J. Burgher." Plaintiff then, on November 24, 1903, undertook to deliver to defendant at Coatsville the flour and meal and to pay the freight thereon; that is to say, defendant was to make the actual payment of the freight, the plaintiff deducting the amount thereof, $14.81, from the total sum for which the articles were sold, and demanding of defendant only the balance, $207.94, remaining after such deduction. The flour did not get to Coatsville for several days. The defendant, becoming annoyed at the delay, informed the agent of the railway company that he was compelled to go away, and unless it got in by the 1st of December he could not receive it until his return. On his return on the fourth of that month as he was about to receive it, the agent demanded $2 of him by way of demurrage. This he refused to pay. Afterwards, he was informed that the railway would waive collection of demurrage. Defendant having, in the meantime, learned that the flour was damaged and unmerchantable, refused to receive or accept it. Several weeks afterwards, the plaintiff had the flour shipped back to it at Glasgow. We are satisfied that the judgment should be reversed. The property involved was above the price of $30, and since it was never delivered to defendant and no earnest money was paid, the sale should be evidenced by writing in order to be valid under the statute of frauds. Plaintiff introduced the written order aforesaid over defendant's objection that it was not sufficient to take the case out of the statute. This writing omits any price and therefore does not state a contract. An omission of price is fatal. Kelly v. Thuey, 143 Mo. 435, 45 S. W. 300; Peycke v. Ahrens, 98 Mo. App. 456, 72 S. W. 151; Martin v. Mill Co., 49 Mo. App. 29.

Defendant's answer, while containing a general denial, did not plead the statute of frauds, and plaintiff urges that, not being pleaded, it cannot be invoked in aid of defendant's defense. We are of opinion that defendant, having denied the contract of sale alleged by plaintiff, need not go further, and specifically set up the statute. The denial of the contract justifies him in demanding of plaintiff legal proof of it and to insist that the statute of frauds nullifies the proof offered. We had occasion to examine the question in Van Idour v. Nelson, 60 Mo....