Inlow v. Bybee
| Decision Date | 05 February 1907 |
| Citation | 99 S.W. 785,122 Mo.App. 475 |
| Parties | INLOW, Appellant, v. BYBEE, Respondent |
| Court | Missouri Court of Appeals |
Appeal from Audrain Circuit Court.--Hon. Houston W. Johnson, Judge.
AFFIRMED.
STATEMENT.--On June 2, 1904, plaintiff and defendant entered into a written contract, of which the parts material to the case are as follows:
The petition alleges, in substance, that plaintiff, on the date of the signing of the contract, and thereafter up to the tenth of the same month, was ready and willing to fulfill the agreement on his part, in all respects, and offered to accept a conveyance from defendant of his farm and tendered the purchase price of $ 12,800, by conveying to him the Farber property and the stock of goods mentioned in the contract but that defendant refused to convey his said farm to plaintiff and has continued to refuse so to do, to the plaintiff's damage in the sum of $ 500.
The answer was a general denial and a counterclaim for five hundred dollars damages, alleged to have accrued on account of the failure of plaintiff to invoice the stock of goods, or to convey the Farber property to defendant. The issues were tried to a jury, who found against plaintiff on his petition, and in favor of defendant on his counterclaim, but refused to allow him any damages. Defendant acquiesced in the verdict, but plaintiff appealed.
On the tenth of June, 1904, plaintiff executed a deed to defendant for the Farber real estate, but never delivered or offered it to him. Plaintiff selected Noah Mitchell and Artie Lee to represent him in taking an invoice of the goods, Lee to act as his bookkeeper. Defendant selected Dan Quinlan and Charles Tanner to represent him, Tanner to act as his bookkeeper. These four men, in the presence of plaintiff and defendant commenced to invoice the goods at about three o'clock in the afternoon of June sixth and continued until about 7:30 p. m., when, on account of objections made by Quinlan and his refusal to proceed, the work was stopped and was not thereafter resumed. It appears that Mitchell was a merchant of long experience, and in previous years had been plaintiff's partner and had marked some of the goods and was familiar with the kind of goods plaintiff had in stock, and with their cost in the St. Louis market. Quinlan, who was a farmer, had had but two years experience as a country merchant, and was unfamiliar with the cost price of plaintiff's goods, with the exception of a few brands of shoes in stock. Plaintiff's evidence is that he had a cost mark and all of the goods, except groceries, were marked with this original price, plus ten per cent; Mitchell knew his cost mark and Quinlan was put in possession of it before the invoice was begun. Plaintiff's evidence further tends to show that the understanding when the invoice commenced, was that the goods should be invoiced by the cost marks thereon, from which ten per cent should be deducted and five per cent added to the remainder to ascertain their cost to defendant. Mitchell and Quinlan began the invoice by taking the shoes, Mitchell working in the lead. These shoes were in boxes on shelves, the cost mark being written on the boxes. Mitchell would count all the shoes having the same stock and cost mark, call the number of pairs and the cost, which call would be entered by Lee and Tanner. Quinlan would look at some of the shoes and the cost marks, and if he thought the call by Mitchell was correct, he let it pass. Presently a mixed lot of shoes was encountered, and Quinlan found shoes that did not fit the boxes they were in and refused to consent to let such shoes be invoiced at the cost marked on the boxes, and called for the original invoices. Plaintiff was unable to produce the invoices for some of such shoes, and Mitchell testified, they were put aside for the time being, and for the purpose of agreeing on their cost price at a future time. According to plaintiff's evidence, after finding four or five pairs of shoes in boxes where they did not belong, Quinlan quit, saying he was "not competent to do the work," and plaintiff would have to get some one else. Plaintiff telephoned John Abbay, an experienced merchant, who came up the next morning, but took no part in invoicing the goods and left in the afternoon. Plaintiff insisted on proceeding with the invoice and told defendant he would furnish every evidence at his command to satisfy him of the St. Louis cost of the goods, but he could not produce all the invoices for the reason some of them had been misplaced. Defendant refused to proceed with the invoice, unless plaintiff would produce the original invoices of the goods, and left without taking any further action in the matter. Plaintiff testified he had purchased a portion of the stock at second-hand and had in his possession the invoice of the goods taken at the time of the purchase, showing the original cost price, and with this invoice, and invoices he had made of his stock at subsequent times, and with the wholesale merchants' invoices he had in his possession, the exact cost price of all the goods he had in stock could have been ascertained, and that he offered to put all these...
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