Herrington v. Julius Seidel Lumber Co.
| Decision Date | 03 January 1922 |
| Parties | FLOYD HERRINGTON, R. L. MITCHELL and W. S. PETTIS, Partners Trading Under the Name and Style of the ESTES LUMBER COMPANY, Appellants, v. JULIUS SEIDEL LUMBER COMPANY, a Corporation, Respondent |
| Court | Missouri Court of Appeals |
Appeal from the Circuit Court of the City of St. Louis.--Hon Benjamin J. Klene, Judge.
REVERSED AND REMANDED.
Judgment reversed and cause remanded.
Wilson & Trueblood for appellant.
(1) A buyer has no right to accept part and reject a part of the goods purchased, and his acceptance of part will be binding upon him as an acceptance of all, for the buyer is not entitled partly to rescind and partly to affirm the contract of sale. 23 R. C. L. 1444; 35 Cyc. 147; Sigerson v Harker, 15 Mo. 101; White v. Miller, 8 L.R.A. (N S.) 727. (2) After an acceptance, the buyer has estopped himself from defending the suit on the ground of nonperformance of the contract by the seller and the buyer must pay the contract price, for by accepting and using the goods, the buyer has limited his remedy to an action for a breach of warranty. Black River Lumber Co. v. Warner, 93 Mo. 386; 35 Cyc. 261 and 263; Stevens v. Mackey, 40 Mo. 228; Lamore v. City, 140 Mo. 145; El Paso v. Davis, 194 Mo.App. 1; 23 R. C. L. 1442; Berthold v. St. Louis, 165 Mo. 304; Mechem on Sales, sec. 1395, p. 1212. (3) The measure of damages, after acceptance, on the warranty is limited to the difference between the actual value of the goods delivered and their value if they had been according to the contract. Outcault Advertising Co. v. Shierbaum, 209 S.W. 982; Sinclair Refining Co. v. Maguire Oil & Supply Co., 221 S.W. 378.
Seneca C. Taylor for respondent.
(1) Where the purchaser orders goods of a certain class, kind or description, and the seller ships part of the goods ordered and also other goods not ordered, the purchaser may accept and pay for the goods ordered without making himself liable for the price of the other goods; and where he returns such other goods within a reasonable time or seasonably informs the seller of the rejection of such other goods (of another kind, class or description than those ordered), he is not liable therefor. Goldstandt-Powell Hat Co. v. Coff, 19 Okla. 243; Cohen v. Pemberton, 53 Conn. 221; Gardner v. Lane, 12 Allen 39; s. c. on third appeal, 98 Mass. 517; Rodman v. Guilford, 112 Mass. 405; Atherton v. Newhall, 123 Mass. 141; Buckeye Buggy Co. v. Montana Stables, 43 Wash. St. 49; Kellogg v. Murphy, 54 N.Y. 685; Kipp v. Meyer, 5 Hun, 111; Gilbert v. Alton, 88 A.D. 62; Holmes v. Gregg, 66 N.H. 621; Canton Lumbr Co. v. Liller, 107 Md. 146; s. c. on second appeal, 112 Md. 528; Stearns Salt & Lumber Co. v. Dennis Lumber Co., 188 Mich. 700; Robertson & Wilson Scale & Supply Co. v. Richman, 212 Mich. 334; Lampson v. Cummings, 52 Mich. 491, 497; McFadden v. Weatherbee, 63 Mich. 390; Flint v. Lyon, 4 Cal. 17; Bushnell v. King Bridge Co., 140 Iowa 405; Showalter v. Winchester Grocery Co., 148 Ky. 579; Teeter v. Cole Mfg. Co., 151 N.C. 602; Freeman v. Skinner, 9 Ired. 32; McEntyre v. McEntyre, 12 Ired. 299; Waldo v. Halsey, 3 Jones Law, 109; Robert Buist Co. v. Mercantile Co., 73 S.C. 48; Molling v. Dean, 18 Times L. R. 217; Champion v. Shortt, 1 Camp. 53; Aitken, Campbell & Co., Ltd., v. Boullen & Gatenby (1908), S. C. 490; 35 Cyc, 258-259; Tiedeman on Sales, sec. 70, p. 85; Williston on Sales, sec. 493, p. 863, sec. 462; 25 Halsbury's Laws of England, p. 213. (2) The difference between No. 1 and No. 3 or between No. 3 and No. 4 or between No. 1 and No. 2 and culls is not a mere difference in quality but is a difference in kind, class, species or description. "It is as if A should sell a horse to B and deliver a cow instead." Gardner v. Lane, 12 Allen 39; s. c. on third appeal, 98 Mass. 517; Cohen v. Pemberton, 53 Conn. 221; Whitehall Mfg. Co. v. Wise, 119 Pa. 484; Joseph v. Richardson, 2 Pa. Superior 208; Catchings v. Hacke, 15 Mo.App. 51; Ungerer & Co. v. Louis Maull Cheese & Fish Co., 155 Mo.App. 95; Columbian Iron Works Co. v. Douglas, 84 Md. 44; Gould v. Stein, 149 Mass. 570; Springfield Shingle Co. v. Edgecomb Mill Co., 52 Wash. St. 620; J. F. Donahoo Co. v. Reliance Equipment Co., 201 Ala. 422; L. Cohen Grocer Co. v. Diehm Grocer Co., 232 S.W. 209; Azemar v. Casella, 23 Eng. Rul. Cas. 440. (3) The rejection and return of articles of a different kind or descrption, not answering to the terms of the contract, or of refusing to accept such articles for such reason, does not stand upon the ground of rescission, but is one of insistence on the fulfillment of the contract; nor does the right to rejest and return them depend upon the existence of a warranty. Cohen v. Pemberton, 53 Conn. 221. Manfield v. Trigg, 113 Mass. 350; Lampson v. Cummings, 52 Mich. 491; Potsdamer v. Kruse, 57 Minn. 193; Springfield Shingle Co. v. Edgecomb Mill Co., 52 Wash. St. 620; Tiffany on Sales, sec. 86, pp. 155-157; Sec. 95, p. 171; Sec. 131, p. 242; Acc. Ungerer & Co. v. Louis Maull Cheese & Fish Co., 155 Mo.App. 95. (4) Sale by description imparts a warranty that the property sold is of that description. Catchings v. Hacke, 15 Mo.App. 51; Whittaker v. McCormick, 7 Mo.App. 114; Long Bros. v. The J. K. Armsby Co., 43 Mo.App. 253; Beck & Corbitt Iron Co. v. Holbeck, 109 Mo.App. 179; Childs v. Emerson, 117 Mo.App. 671; Alvin Fruit & Truck Ass'n v. Hartman, 146 Mo.App. 155; Ungerer & Co. v. Louis Maull Cheese & Fish Co., 155 Mo.App. 95. (5) Sale by description not only imparts a warranty that the property sold is of that description, but the delivery of property of that description is of the essence of the fulfillment of the contract of sale on the part of the vendor. The delivery of goods of another kind, class, species or description, as contradistinguished from a mere defect or difference in quality of goods of the same kind, class or species described, is a thing beyond the scope of and aside from the contract of sale. Springfield Shingle Co. v. Edgecomb Mill Co., 52 Wash. St. 620; Azemar v. Casella, 23 Eng. Rul. Cas. 440; Authorities cited under Points 1, 2 and 3, supra. (6) A severance of an otherwise entire order for the shipment from a distance of goods of a certain kind or description may be effected by the act of the parties, and is so effected by the vendor delivering a part of such goods and refusing to deliver the rest and the acceptance or retention and use by the vendee of the part delivered. Canton Lumber Co. v. Liller, 107 Md. 146; Saunders v. Short, 86 F. 225; Stearns Salt & Lumber Co. v. Dennis Lumber Co., 188 Mich. 700; Bowker v. Hoyt, 18 Pick. 555; Richards v. Shaw, 67 Ill. 222; Champion v. Shortt, 1 Camp. 53; Oxendale v. Weatherell, 9 B. & C. 386. (7) Contract, entire or severable. Performance or consideration, single or opportionable. The question is one of intention, and the intention is often, if not usually, a question of fact. Cantwell v. Crawley, 188 Mo. 44; Billups v. Daggs, 38 Mo.App. 367; Weil v. Stone, 33 Ind.App. 112; Holmes v. Gregg, 66 N.H. 621; Canton Lumber Co. v. Liller, 107 Md. 146; Stearns Salt & Lumber Co. v. Dennis Lumber Co., 188 Mich. 700; Lampson v. Cummings, 52 Mich. 491; Schiller v. Blyth & Fargo Co., 15 Wyo. 304; Authorities cited under Points 1 and 2, supra. The contract of sale may be so framed that the intention of the purchaser, rather than that of the seller, dominates the question of severability. Lahiff v. Keville, 184 Iowa 1334. (8) Where work is done or materials are furnished on a special contract and suit is brought thereon, without a count on quantum meruit or quantum valebat, plaintiff cannot recover unless it is shown that the plaintiff has performed all the terms of the contract on his part to be performed. Bersch v. Sanders, 37 Mo. 104; Turner v. Mellier, 59 Mo. 526; Eyerman v. Cemetery Ass'n, 61 Mo. 489; Davis v. Brown, 67 Mo. 313; Plow Co. v. Hartman, 84 Mo. 610; Keith v. Ridge, 146 Mo. 90; Halpin v. Manny, 33 Mo.App. 388; Billups v. Daggs, 38 Mo.App. 367; Lumber Co. v. Water Supply Co., 89 Mo.App. 141; Brierre v. Sugar Co., 102 Mo.App. 622; Skinner v. Young, 106 Mo.App. 615; Wade v. Nelson, 119 Mo.App. 278. (9) Vendee is entitled to recover the reasonable expenses of storage. Rubin v. Sturtevant, 26 C. C. A. 259; Acme Lumber Co. v. Board of Com'rs, 137 La. 899. (10) The petition does not state facts sufficient to constitute a cause of action. It alleges that "the plaintiffs contracted and agreed to sell and deliver to the defendant . . . lumber, known as No. 1 S & E," but nowhere alleges that plaintiffs delivered Number 1, or that the defendant accepted other lumber in lieu of Number 1 or in lieu of performance, or that plaintiffs duly performed the conditions of the contract on their part. Moline Plow Co. v. Hartman, 84 Mo. 610; Halpin v. Manny, 33 Mo.App. 388; Billups v. Daggs, 38 Mo. 367; Lewis v. Van Hooser, 227 S.W. 618.
--Plaintiffs, as copartners, sued to recover the purchase price of a carload of lumber sold to defendant, and shipped from the State of Mississippi to St. Louis, Missouri. Defendant ordered the lumber through brokers, which order was received by plaintiffs about February 20, 1918. The order was for Plaintiffs acknowledged receipt of this order in a letter to defendant, dated February 20, 1918, in which they state that the official specifications of the Southern Pine Association were to apply, and in case of a dispute over the grades or tally, an official inspection by such association should be taken as a basis for settlement, all claims to be filed within five days from receipt of stock and all lumber to be held intact until inspection and settlement was made. Defendant was also...
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