Howard v. Haas
Citation | 131 Mo. App. 499,109 S.W. 1076 |
Parties | HOWARD v. HAAS. |
Decision Date | 28 April 1908 |
Court | Court 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: 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: ...
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... ... 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 ... ...
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Smith v. Boudreau
...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......
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... ... 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 ... ...
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Street v. Werthan Bag & Burlap Co.
...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......