Howard v. Haas

Citation131 Mo. App. 499,109 S.W. 1076
PartiesHOWARD v. HAAS.
Decision Date28 April 1908
CourtCourt of Appeal of Missouri (US)

Plaintiff sold a certain quantity of canned tomatoes, to be paid for on presentation of bill of lading, but a less quantity than was contracted for was shipped, with draft attached to the bill of lading. Defendant obtained possession of the shipment without paying the draft, and, in an action of replevin set up a counterclaim for breach of contract in failing to deliver the agreed quantity. Held that, though the action was in tort, the counterclaim arose out of the transaction set forth in the complaint, and was connected with the subject-matter of the suit, as required by Code Civ. Proc. § 605, and was proper.

3. SALES—DAMAGES—MEASURE OF DAMAGES— FAILURE TO DELIVER.

Where plaintiff failed to ship the entire quantity of canned tomatoes covered by an executory contract of sale, and the shipment was not paid for on presentation of bill of lading as required by the contract, in an action of replevin for the portion shipped, but not paid for, the measure of damages on a counterclaim for breach of the contract in failing to ship the quantity contracted for was the difference between the contract price and the value at the date of the breach of contract, less the damages sustained by the wrongful detention of the portion shipped and detained by defendant.

Appeal from Circuit Court, Newton County; F. C. Johnston, Judge.

Replevin by Martin L. Howard against Ed. Haas. From a judgment for defendant on a counterclaim, plaintiff appeals. Reversed and remanded.

On June 22, 1905, the following contract was entered into by plaintiff and defendant: "Republic, Mo., June 22, 1905. The Central Point Canning Company, of Springfield, Mo., hereby sell, and Ed. Haas, of Neosho, Mo., hereby buys, 500 cases 3s. Standard Tomatoes, pack of 1905, at 70c. per dozen, net cash, f. o. b. Springfield, Mo. Usual guarantee against all swells and leaks until June 1, 1906. Seller not liable for delivery of goods in case of destruction of cannery, and not liable for delivery of more than 75 per cent. of this order in case of inability to fill orders in full, owing to partial or complete destruction of crops by hail, drouth, or any unavoidable accident or casualty. Shipment to be made as soon as goods are ready. Terms: Sight draft against bill of lading payable on presentation. This contract is written in triplicate. Ed. Haas, Buyer. [Seal.] Accepted Central Point Canning Co. [Seal.] Martin L. Howard, Manager." Plaintiff, Howard, at the time the contract was made, was the sole lessee of the canning company's factory, and the contract was for his sole benefit. About October 1, 1905, plaintiff shipped defendant, at Neosho, Mo., 218 cases of tomatoes by local freight, and drew a sight draft for the contract price on defendant, attached it to the bill of lading, and sent it through a bank to Neosho for collection. Defendant got possession of the tomatoes, but refused to pay the draft. Plaintiff drew a second draft a few days afterwards, and also called upon defendant and demanded payment for the tomatoes. Defendant refused to honor the second draft, or to pay for the tomatoes, and plaintiff brought this action in replevin, got possession of the tomatoes, and in about 60 days thereafter sold them for $1.10 per dozen. The answer, after admitting defendant was in possession of the tomatoes at the time suit was brought, set up the following counterclaim: "Defendant avers that he was and is the owner and rightly entitled to the possession of said property, and now claims the same, and demands a return thereof to him. Defendant says that said property was and is of the value of $436, and that he has been damaged by plaintiff's taking and detention of the same in the sum of $100, for which he asks judgment. Defendant for further answer and counterclaim herein says that by contract duly made between plaintiff and defendant on June 22, 1905, plaintiff, doing business under and using the name of Central Point Canning Company, sold to defendant for future delivery 500 cases 3s. Standard Tomatoes, pack of 1905, at 70 cents per dozen, net cash, f. o. b. Springfield, Mo., shipment to be made as soon as goods were ready, which was in the fall of 1905, and plaintiff contracted and agreed to ship and deliver to defendant said amount of tomatoes at the price above stated. A copy of said contract is attached to and filed with the papers in this case, and is made a part thereof. Defendant further says that plaintiff in October, 1905, did ship and deliver to him the canned tomatoes sued for in this case, being 218 cases only, but failed and refused to ship or deliver to him the balance of said 500 cases of tomatoes or any part thereof, but, on the contrary, stated to defendant and notified him that he would not ship or deliver to defendant any other or more tomatoes and claimed that he was not obligated so to do. Defendant further says that the market price and value of canned tomatoes of the kind and quality which plaintiff had sold and contracted to deliver to defendant was in October, 1905, and during the entire fall and winter of said year $1 per dozen cans or $2 per case, whereas plaintiff had sold and agreed to deliver same to defendant at 70 cents per dozen or $1.40 per case. Defendant further says that had plaintiff shipped and delivered to defendant the entire 500 cases of tomatoes, or even 375 cases, the same would and could have been shipped in carload lots and at carload rates. Wherefore defendant says he is damaged by reason of plaintif...

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23 cases
  • State ex rel. and to Use of Smith v. Boudreau
    • United States
    • Missouri Court of Appeals
    • May 7, 1935
    ... ... McCormick Harvesting Co. v. Hall, 104 Mo.App. 544, ... 552; Boehme v. Roth, 280 S.W. 730; Howard v ... Gass, 131 Mo.App. 499; Collins v. John Pfingston ... Leather Co., 196 Mo.App. 611, 621, 622. (4) Plaintiff ... could have interposed any ... ...
  • Smith v. Boudreau
    • United States
    • Missouri Court of Appeals
    • May 7, 1935
    ...well as to defeat the plaintiff's claim. McCormick Harvesting Co. v. Hall, 104 Mo. App. 544, 552; Boehme v. Roth, 280 S.W. 730; Howard v. Gass, 131 Mo. App. 499; Collins v. John Pfingston Leather Co., 196 Mo. App. 611, 621, 622. (4) Plaintiff could have interposed any defense in former suit......
  • Riss & Co. v. Wallace
    • United States
    • Missouri Supreme Court
    • April 6, 1943
    ... ... Co. v. Hill, 104 Mo.App. 544, 79 S.W. 745; ... Small v. Speece, 131 Mo.App. 513, 110 S.W. 7; ... Barnard v. Weaver, 224 S.W. 152; Howard v ... Haas, 131 Mo.App. 507, 109 S.W. 1076; Graham Paper ... Co. v. Natl. Newspaper Assn., 193 S.W. 1003. (3) The ... court erred in ... ...
  • Street v. Werthan Bag & Burlap Co.
    • United States
    • Missouri Court of Appeals
    • February 5, 1918
    ...the bills-of-lading were not to be delivered until the drafts to which they were attached should have been paid. [See Howard v. Haas, 131 Mo.App. 499, 501, 109 S.W. 1076; Roaring Fork Potato Growers v. Produce Co., Mo.App. 653, 187 S.W. 617.] In view of the written contract, together with t......
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