J.E. Stewart Produce Co. v. Gamble-Robinson Commission Co.

• Decision Date: 06 April 1915
• Docket Number: No. 13,949.,13,949.
• Citation: 189 Mo. App. 654,175 S.W. 319
• Parties: J. E. STEWART PRODUCE CO. v. GABLE-ROBINSON COMMISSION CO.
• Court: Missouri Court of Appeals

175 S.W. 319

189 Mo. A. 654

J. E. STEWART PRODUCE CO. v. GABLE-ROBINSON COMMISSION CO.

No. 13,949.

St. Louis Court of Appeals. Missouri.

April 6, 1915.

Appeal from St. Louis Circuit Court; J. Hugo Grimm, Judge.

Action by the J. E. Stewart Produce Company against the Gamble-Robinson Commission Company. After verdict for plaintiff, defendant was granted a new trial, and plaintiff appeals. Order reversed, and cause remanded to enter judgment for plaintiff.

Frank A. Thompson, of St. Louis, for appellant. H. M. Wilcox and G. II. Ten Broek, both of St. Louis, for respondent.

ALLEN, J.

This is an action for the alleged breach by defendant of a contract for the sale by plaintiff to defendant of a car load of potatoes. There was a verdict below for plaintiff, but the court, on defendant's motion, set it aside and granted a new trial on the ground that the jury had awarded damages in a sum not warranted by the evidence and contrary to the court's instruction relative to the measure of damages. From the order granting a new trial, plaintiff prosecutes this appeal.

Plaintiff is a corporation engaged in the wholesale produce business in the city of St. Louis, `and defendant is a corporation engaged in a like business in Minneapolis, Minn. On June 20, 1911, a contract was entered into between plaintiff and defendant, by exchange of telegrams, for the sale by plaintiff to defendant of a car load of potatoes known as Oklahoma Triumphs. The contract was made at plaintiff's solicitation, several telegrams passing between the parties on the same day. Plaintiff quoted "Triumphs" at $2.05 per bushel "f. o. b. St. Louis," provided defendant would agree to accept the potatoes on arrival at Minneapolis without complaint, plaintiff stating that the crop was short, and that there was a demand for more than could be obtained at this price. However, in a later telegram plaintiff stated that the potatoes were "Oklahoma stock, quality good, but only medium size," and defendant thereupon telegraphed plaintiff to ship the car "if dry stock, quality as described." The car load of potatoes arrived at Minneapolis on June 25th, and on the following day defendant, by telegram, rejected them as being of "very poor quality, extremely small, soft and wet." Further telegrams passed between the parties to which it is here unnecessary to refer.

Plaintiff insisted that the potatoes shipped were in accordance with the contract, and, after having notified defendant thereof, arranged with another commission company in Minneapolis to sell them for defendant's account. They were so sold, not as a car load lot, but in smaller quantities, to different purchasers, during a period extending from June 28 to perhaps July 18, 1911. "The evidence discloses that the contract price amounted to $881.15. The potatoes were resold, in the manner above stated, for the gross sum of $577.80. The freight and selling charges amounted to $103.98, leaving $473.82 as the net amount realized, which latter sum was remitted to plaintiff. The verdict of the jury was for $407.33, being the contract price of $881.15, less $473.82, the amount received by plaintiff as the net proceeds of the resale.

There is a sharp conflict in the evidence as to the size of the potatoes, this being the only question of fact concerning which any serious doubt may be entertained. Plaintiff's evidence, consisting in part of the testimony of inspectors who had examined the contents of the car for a company that had originally purchased the potatoes in Oklahoma and sold them to plaintiff, was to the effect that the potatoes were sound Oklahoma Triumphs of "medium size." Defendant's evidence on the other hand, went to show that they were too small to be classed as medium in size, and so small as to be practically unmerchantable. Such, in effect, was the testimony of a Mr. Lucas, who acted for the company that resold the potatoes, and who stated, in substance, that though the quality was good, he was unable to sell them as a car load lot, or for the market price of medium potatoes, because they were so small, and that he obtained the best price possible under the circumstances. However, the jury by their verdict in plaintiff's favor have found fiat the potatoes were in fact of medium size, as called for by the contract; and this is now to be regarded as an established fact in the case.

In general, when a vendee has breached a contract of sale and refused to accept the goods contracted for, the vendor has his choice of the following remedies, viz.: (1) He may store or retain the property for the vendee, and sue for the entire contract price; (2) he may keep the property as his own, and recover the difference between the market price, at the time and place of delivery and the contract price; (3) or he may resell the property, acting as the vendee's agent and taking requisite steps to protact the vendee's interest, and recover the difference between the contract price and the price obtained by such resale. See Dobbins v. Edmonds, 18 Mo. App. 307; Ozark Lumber Co. v. Chicago Lumber Co., 51 Mo. App. 555; St. Louis Range Co. v. Mercantile Co., 120 Mo. App. 438, 96 S. W. 1040; Koenig v. Boat Mfg. Co., 155 Mo. App. 685, 135 S. W. 514; Oehler v. Fruit Co., 162 Mo. App. 446, 142 S. W. 811.

Plaintiff here adopted the third of the above-mentioned remedies. That is to say, plaintiff, with notice to the defendant, caused the property to be sold for the best price obtainable therefor, deducted the net proceeds of such resale from the contract price, and brought suit for the remainder of the contract price, as being the damages entailed by the breach. And the verdict of the jury is precisely this difference between the contract price and the net proceeds of the resale. The court, of its own motion, instructed the jury that if they found for plaintiff, their verdict should be for the...