Groneweg & Schoentgen Company v. Estes
| Decision Date | 02 May 1910 |
| Citation | 128 S.W. 786,144 Mo.App. 418 |
| Parties | GRONEWEG & SCHOENTGEN COMPANY, Appellant, v. SAM ESTES, Respondent |
| Court | Missouri Court of Appeals |
Appeal from Christian Circuit Court.--Hon. John T. Moore, Judge.
REVERSED AND REMANDED.
STATEMENT.--Action commenced before a justice of the peace, appealed to the circuit court where it was tried at the August term, 1909 verdict returned for defendant, and plaintiff has appealed to this court. The basis of this action is the following contract:
The negotiations which led up to the execution of this contract were conducted by correspondence between the defendant and the Meinrath Brokerage Company, Brokers of Kansas City. On July 29th, 1905, Estes wrote the brokers as follows:
To this the brokers replied on August 2, 1905, as follows:
To this letter defendant replied on August 4, 1905, as follows:
On August 8, 1905, the brokers wrote defendant as follows:
Accompanying this letter were three copies of the contract above set out. These were signed by Estes and returned to the brokers. On August 17th, 1905 the brokers wrote Estes as follows:
On August 18, 1905, the defendant wrote the brokerage company a letter which was not found at the time of the trial, but which it admitted was, in substance, a refusal on the part of Estes to ratify a sale of eight hundred cases of tomatoes, and stating that he had signed the contract of sale because it called for three hundred cases, and that he would not have signed it if it had called for eight hundred cases.
The only evidence as to any correspondence direct between plaintiff and defendant is that witness Collins, the stepson of defendant, who conducted the correspondence for him, states that he wrote plaintiff a letter some time in August, and that he received a reply thereto. This reply had been lost, and could not be produced at the trial, but we infer from the other testimony of this witness that this letter of plaintiff's notified the defendant that they would expect the three hundred cases. We find these questions and answers immediately following the questions and answers relating to the failure to produce the letter.
After this time several letters were written by the brokers to the defendant in which they insisted that defendant had authorized them to sell eight hundred cases--that they had sold eight hundred cases and insisted that defendant execute the contract covering eight hundred cases. There is no evidence to connect the plaintiff in any way with any of these letters. On October 26, 1905, the brokers wrote defendant as follows:
On November 21st, 1905, the brokers again wrote Estes as follows:
On November 28, 1905, the brokers wrote Estes as follows:
On the 6th of December, 1905, the brokers against wrote Estes insisting that he ship immediately the 225 cases. The tomatoes were not shipped, but defendant sold what tomatoes he had to another party, and plaintiff afterwards brought this suit. On the trial in the circuit court, at the instance of plaintiff, the court gave the following instruction:
"The court instructs the jury that if the jury believe and find from the evidence that plaintiff, Groneweg & Schoentgen Company, and defendant, Sam Estes, made the contract offered in evidence on the part of plaintiff, dated Kansas City, Mo., August 8, 1905, and, thereafter, defendant, Sam Estes, failed to deliver to plaintiff, Groneweg & Schoentgen Company, the tomatoes mentioned in said contract, you will find the issue for the plaintiff."
Also instructions as to the measure of damages, and in relation to the time of delivery as provided for in the contract. On behalf of defendant the court gave the following instruction:
"If you find and believe from the evidence that the defendant agreed and contracted with the plaintiff to deliver to plaintiff 300 cases of tomatoes f. o. b. Billings, Mo., at 75 cents per dozen, less 1 1/2% brokerage, and that plaintiff was unable on account of unavoidable casualty to fill said order in full, and that he offered to deliver to plaintiff 225 cases of tomatoes as per said contract provided, and that plaintiff was demanding shipment of a greater number of cases and failed and refused to accept defendant's offer within a reasonable time, then you should find the issues for defendant."
These were all the instructions given to the jury. The plaintiff asked the court to instruct the jury that if defendant first employed the Meinrath Brokerage Company, and if the brokers negotiated the transaction upon which the suit is based, then they were the agents of defendant, and plaintiff is not responsible for any conduct or correspondence of the brokers.
Judgment reversed and cause remanded.
Oscar B. Elam for appellant.
(1) A broker may be the agent of both parties to a sale for the purpose of signing a memorandum of the sale, but in all...
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