Hunter Bros. v. Stanley

• Decision Date: 08 June 1908
• Citation: 132 Mo. App. 308,111 S.W. 869
• Parties: HUNTER BROS. v. STANLEY.
• Court: Missouri Court of Appeals

111 S.W. 869

132 Mo. App. 308

HUNTER BROS. v. STANLEY.

Kansas City Court of Appeals. Missouri.

June 8, 1908.

Rehearing Denied June 29, 1908.

1. SALES — PERFORMANCE OF CONTRACT — DELIVERY—RIGHT OF INSPECTION.

In case of an executory contract for the delivery of goods to the buyer at a certain place, there is an implied right of inspection of quality and quantity, and then, as contemporaneous acts, there should be delivery and payment.

2. SAME—DELIVERY.

On a shipment directly to the consignee, a delivery to the carrier is a delivery to the consignee, but this is not so where the shipment is to the consignor's own order, since in such case he does not part with his property, and hence a consignment of goods to the consignor's own order to be delivered to the buyer only upon his payment of drafts attached to the bills of lading was not a performance of a contract to deliver to the buyer.

Appeal from Circuit Court, Jackson County; Jno. G. Park, Judge.

Action by Hunter Bros., against Wyatt Stanley. Judgment for defendant, and plaintiff appeals. Affirmed.

Aleshire, Herrick & Gundlack, for appellant. Karnes, New & Krauthoff, for respondent.

ELLISON, J.

This action is for damages for breach of contract. The judgment in the trial court was for the defendant.

The petition is founded upon a contract of sale of 200 tons of cotton seed meal to be delivered to defendant free on board the cars at Ascot, Kan., and in consideration of the sale and delivery to defendant of the meal defendant agreed to pay plaintiff at the rate of $23.25 per ton. The petition then alleges that in compliance with the contract plaintiff shipped the meal to defendant at Ascot, Kan., where it arrived in due time, but that defendant would only receive one car load thereof, for which he paid, and plaintiff was obliged to resell the balance and reship to different points, whereby certain damages are alleged to have resulted. The meal was shipped to Ascot, Kan., but not to defendant. It was consigned by bills of lading to plaintiff's own order, and drafts drawn by plaintiff on defendant were attached to the bills and forwarded to a bank at Anthony, where defendant resided. Defendant opened the first car without consent of the railway company, and paid for the same before, as he states, he discovered it was short in weight. The railway company refused permission to open other cars. In our opinion the judgment was necessarily for the defendant. Under the contract alleged in the...