Irwin v. Wilhoit

• Decision Date: 20 December 1917
• Docket Number: No. 2070.,2070.
• Citation: 199 S.W. 588
• Parties: IRWIN v. WILHOIT.
• Court: Missouri Court of Appeals

199 S.W. 588

IRWIN v. WILHOIT.

No. 2070.

Springfield Court of Appeals. Missouri.

December 20, 1917.

Appeal from Circuit Court, Greene County; Guy D. Kirby, Judge.

Action by W. A. Irwin against S. E. Wilhoit. Judgment for plaintiff, and defendant appeals. Affirmed.

V. O. Coltrane, of Springfield, for appellant. Williams & Galt, of Springfield, for respondent.

STURGIS, P. J.

The plaintiff, a fruit grower, brought this suit against the defendant, a fruit dealer, on a petition the material allegations of which are these:

"Plaintiff for his cause of action states that, at the special instance and request of the defendant, plaintiff sold and delivered to defendant certain goods, wares and merchandise of the value and for the price of $247.60, the items of which, as well as the dates when the various articles were sold, and the prices charged therefor, respectively, appear from the following bill of items, to wit:

                September 24, 1915, 27,000 lbs. of Jonathan
                  apples in bulk, at 90¢ per 100 lbs. $243.00
                September 28, 1915. 24,000 lbs. of Jonathan
                  apples in bulk, at 90¢ per 100 lbs.  216.00
                                                           _______
                   Total ..................................$459.00
                

"Plaintiff says that defendant paid on account of his indebtedness to him as aforesaid the sum of $211.40.

"Plaintiff says that the prices charged for said apples are, and were at the time when said apples were sold and delivered, reasonable and proper, and defendant promised and agreed to pay the same, but, though often hereto requested, he has failed and refused, and still fails and refuses to pay the balance of the $247.60, and any part thereof."

The defendant filed a general denial. On these pleadings the case went to the jury.

The evidence adduced shows that the only question of fact in dispute was whether the defendant bought these two carloads of apples individually or sold them as plaintiff's agent to a firm in Memphis, Tenn. It is conceded that defendant received a telegram from this Memphis firm telling him to buy and have shipped two cars of Jonathan apples in bulk at 90 cents per hundred pounds, one car to be shipped at once and the other later. The defendant took this telegram to plaintiff, and the apples were shipped by plaintiff to the Memphis firm. The plaintiff and defendant flatly contradict each other as to what contract was made between them on the basis of this telegram. The plaintiff's version is that when defendant came to him with the telegram he told defendant that he did not know and would not sell these apples to the Memphis firm, but that he would sell them to defendant; that defendant agreed to this and told him to ship the apples to the Memphis firm. The defendant's version is that the plaintiff had previously asked him to help plaintiff sell these apples and that he wired to several firms asking what they would pay, etc.; that he received this telegram and turned it over to plaintiff, telling him to fill the order or not as he liked. He denied that he obligated himself personally. The court thereupon submitted the case to the jury on this instruction:

"The court instructs the jury that if you find from the evidence that the defendant presented the telegram read in evidence to the plaintiff, and that plaintiff stated to defendant that he (plaintiff) would not sell the apples mentioned in the said telegram as `two cars bulk Jonathans, * * * ninety cents,' to the Ashner Fruit Company, but would sell them to defendant, and if you find that defendant thereupon agreed to buy them or pay for them, then defendant would be liable to plaintiff for the apples shipped to and received by the Ashner Fruit Company at the rate specified in the said telegram, and if you find that defendant did so agree you should return a verdict for the price of the apples so shipped at said rate less the amount you find plaintiff received in part payment for the apples not to exceed the sum of $247.60. If you find that defendant never agreed to pay for said apples himself, but only gave the telegram to plaintiff as authority for plaintiff selling the apples to the Ashner Fruit Company, then defendant is not liable, and your verdict should be for the defendant."

The jury found for plaintiff, and the defendant appeals.

The appellant very properly concedes that the finding of the jury on this contradictory evidence is binding on the court and confines his specifications of errors within narrow limits.

Construing the petition as stating a cause of action on quantum meruit, or more properly quantum valebant (3 Blackstone, Commentaries, 161), the defendant says that "where one sues on a quantum meruit he cannot recover on a special or specific contract," citing Reifschneider v. Beck, 148 Mo. App. 725, 129 S. W. 232; Cole v. Armour, 154 Mo. 333, 351, 55 S. W. 476. The first of these cases does so hold, but the facts of that case are just the converse of this proposition; i. e., the suit is on a specific contract, and the plaintiff sought to recover on a quantum meruit. It is true that the evidence here shows a specific contract for the sale of these apples fixing the quantity, quality, and price, and the parties differ only as to the vendee. We are not persuaded, however, that the cause of action is in assumpsit on quantum valebant. The action for goods sold and delivered may be in assumpsit either on the express or implied promise as to the price (5 C. J. 1380); i. e., on a special contract fixing the price, where such is the fact, or on quantum valebant where no price has been agreed upon. Some of the language used by the pleader is appropriate to one form of action, and some to the other. Wherein the pleader alleges that the value of the goods sold and delivered was a certain amount and the prices charged were reasonable and proper, such language taken alone would indicate that there was no contract price and the suit is on a quantum valebant; but the pleader goes further and alleges that the goods were sold for the price of a specified sum, and that defendant promised and agreed to pay such specified price. This language clearly indicates that the suit is on an agreed or contract price. In our practice forms of action have been abolished, and it is only necessary to state in concise language the facts constituting the cause of action and the relief sought. Section 1794, R. S. 1909. The petition was probably open to attack by motion to have same made definite and certain in this respect; but we are inclined to hold that after verdict it should be construed, as it readily can be, so as to sustain the verdict and judgment. We see no reason for holding that there is a fatal variance between the pleadings and the proof.

The instruction quoted is said to be erroneous in telling the jury to find the value of the apples at the rate and price specified in the telegram. The measure of damages under this petition is...