Guess v. Russell Bros. Clothing Co.

• Decision Date: 13 June 1921
• Docket Number: No. 13575.,13575.
• Citation: 231 S.W. 1015
• Parties: GUESS et al. v. RUSSELL BROS. CLOTHING CO.
• Court: Missouri Court of Appeals

231 S.W. 1015

GUESS et al. v. RUSSELL BROS. CLOTHING CO.

No. 13575.

Kansas City Court of Appeals. Missouri.

June 13, 1921.

Appeal from Circuit Court, Johnson Comity; Ewing Cockrell, Judge.

"Not to be officially published."

Action by Buford H. Guess and others against the Russell Bros. Clothing Company. Judgment for defendant in the circuit court on appeal from a justice of the peace, and the plaintiffs appeal. Reversed and remanded for new trial.

E. C. Littlefield, of Knobnoster, and Nick M. Bradley, of Warrensburg, for appellants.

James A. Kemper, of Independence, for respondent.

ARNOLD, J.

This is a suit for the recovery of the purchase price of a talking machine sold defendant by plaintiffs. The cause originally was tried without contest in a justice court, the judgment being for plaintiffs in the sum of $117.50, and defendant appealed to the circuit court. There the case was tried to a jury and resulted in a verdict for defendants. Plaintiffs appeal.

The testimony shows that on September 29, 1917, one T. H. Campbell, a sales agent of plaintiffs, entered the store of defendant, at Warrensburg, Mo., and sought to sell to defendant a certain Universal talking machine, 5,000 keys, 3,000 envelopes, 1,000 circulars, 6 records, and 1 movie slide, with exclusive rights in Warrensburg; the whole being a scheme to induce people to trade with defendant company, and embraced the plan of giving to each purchaser at the store of defendant one key for each $1 worth of merchandise purchased. One only of the 5,000 keys would open the lock of the talking machine. After explanation of the plan, an agreement to purchase was entered into between plaintiffs and the defendant concern. Defendant's object in making the purchase lay in its desire to stimulate the holiday trade and to award the talking machine to the party holding the proper key at Christmas. It was shown that, as a part of said agreement to purchase plaintiffs, through their agent, represented that the machine was "on the floor" in plaintiffs' place of business in Cedar Rapids, Iowa, and would be shipped "at once, or as soon as possible."

The testimony further shows that plaintiffs' agent was desirous of catching a train due in five minutes, that he filled out an order blank inserting therein the articles above enumerated, and that he stated to Mr. Russell that he had included in the order the facts upon which an agreement had been reached, and he asked defendant's representative to sign at once, so he could catch his train, and this was done.

The order thus signed is as follows:

"New England Factories Company, Representatives of New England Factories, Cedar Rapids, Iowa, 9-27-1917. Please ship as soon as possible to Russell Bros. Town, Warrensburg. State, Mo. Ship via hi. P. Terms -2 per cent., 10-80-60-90. Agreement: We make no charge for advertising matter or display racks. No verbal agreements recognized. [Here follows list of articles as above enumerated.] Exclusive rights in Warrensburg. Machines guaranteed one year. Machine 50" high $117.50. Russell Bros. Quality Clothes Shop, Warrensburg, Mo. $1.00 plan not on accounts."

"Responsibility of shipper ceases when goods are delivered to transportation company in good condition at point of shipment. This order is not subject to countermand. All bills payable at Cedar Rapids, Iowa. This Universal talking machine is sold with the understanding that it is to be run on the key contest plan, and, the executive committee is to award the machine. Salesman, T. H. Campbell. Purchase; Russell Bros. Sept. 29, 1917."

The testimony further shows that said machine was not at Cedar Rapids, Iowa, but was shipped from Rockford, Ill., on October 29, 1917, and not received by defendant until about Thanksgiving Day, 1917, too late for the purpose desired; that the other articles named in the order were shipped from Cedar Rapids and received in due season, but were held unopened awaiting the arrival of the machine. On arrival of the machine the whole was shipped back to plaintiff at Cedar Rapids, freight prepaid. Defendant refused to receive the articles because of alleged covenant broken by plaintiffs in the prompt shipment of the machine.

The jury was instructed that if they found and believed from the evidence that the contract was partly Written and partly verbal, and that plaintiffs' agent represented that the machine was on the floor of the factory at Cedar Rapids, and that it would be shipped immediately, or as soon as possible, and that the contract was dependent upon this agreement, and that it was not shipped immediately, or as soon as possible, from Cedar Rapids, their verdict should be for the defendant

The written agreement was complete and not obscure, and any verbal evidence tending to contradict or vary its terms was inadmissible, and the court's instruction was erroneous. The determination of the meaning of the words "as soon as possible" was for the court. The weight of authority on this point is to the effect that the meaning of such words, when used in a contract for the shipment of goods, requires that the shipment be made within a reasonable time under the circumstances. Rhodes v. Cleveland Rolling-Mill Co. (C. C.) 17 Fed. 426, 431; Tufts v. Morris, 87 Mo. App. 98. Testimony tending to show that the goods were to be shipped in any other than a reasonable time under the circumstances was not admissible...