John Deere Plow Co. v. Cooper

• Decision Date: 03 March 1936
• Parties: JOHN DEERE PLOW CO., A CORP., APPELLANT, v. H. T. COOPER, J. C. COOPER AND M. H. COOPER, CO-PARTNERS DOING BUSINESS AS COOPER BROTHERS & SON, RESPONDENTS
• Court: Missouri Court of Appeals

91 S.W.2d 145

230 Mo.App. 167

JOHN DEERE PLOW CO., A CORP., APPELLANT, v. H. T. COOPER, J. C. COOPER AND M. H. COOPER, CO-PARTNERS DOING BUSINESS AS COOPER BROTHERS & SON, RESPONDENTS

Court of Appeals of Missouri, St. Louis

March 3, 1936

Appeal from Circuit Court of Madison County.--Hon. B. H. Boyer and Taylor Smith, Judges.

AFFIRMED.

Judgment affirmed.

Paul L Hale for appellant (plaintiff).

(1) Under the law and evidence in this case, the judgment and decree should have been for the plaintiff for the sum of four hundred twenty-three and 90/100 dollars ($ 423.90). (a) Plaintiff was within its rights in waiving its lien upon the property under its contract, marked "Plaintiff's Exhibit 1," and suing for the sale price. General Excavator Co. v. Emory, 40 S.W.2d 490; Kolb v Golden Rule Baking Co., 9 S.W.2d 840; Twentieth Century Machinery Co. v. Excelsior Springs Mineral Water & Bottling Co., 171 S.W. 944 (affirmed at 200 S.W. 1079 273 Mo. 142); Wayne Tank & Pump Co. v. Quick Service Laundry Co., 285 S.W. 750; American Law Book Co. v. Brewer et al., 213 S.W. 881, 202 Mo.App. 15. (b) A buyer cannot rescind part of a contract of sale without rescinding all. Neal v. Crowson, 231 S.W. 1033; Syme-Eagle & Co. v. Joplin Grocer Co., 229 S.W. 246, 206 Mo.App. 357. (c) Rescission of contract of sale after delivery of goods, must be by mutual consent of the parties. Oliver v. Hirsch, 296 S.W. 840, 222 Mo.App. 251. (d) Upon the undisputed facts shown by plaintiff's testimony and under the provisions of instruction No. 2, it was the duty of the jury to find in favor of plaintiff and against defendants in the sum of $ 423.90. Lewis v. Illinois Central Railway Company, 50 S.W.2d 122; Busse et al. v. White et al., 274 S.W. 1046; Barber v. McDonald, 245 S.W. 357; Burrel Collins Brokerage Co. v. Hines, Director General, 230 S.W. 371, 206 Mo.App. 669; Abbey v. Altheimer, 263 S.W. 471, 215 Mo.App. 1. (2) The court erred in refusing to give the jury plaintiff's instruction No. 3, in the nature of a peremptory instruction to find in favor of plaintiff, and against defendants on plaintiff's petition, for the sum of $ 423.90. Cox v. Higdon, 67 S.W.2d 547; Sturdivant Bank v. Houck, 215 S.W. 758; Vincent v. Means et al., 82 S.W. 96, 184 Mo. 327; Central Flour Mills Co. v. Gateway Milling Co., 213 S.W. 131; Janes et al. v. Levee District No. 2 of Dunklin County, 183 S.W. 697; Gilmore v. Modern Brotherhood of America, 171 S.W. 629; Fink v. Kansas City Southern Railway Co., 143 S.W. 568; St. Charles Savings Bank v. Orthwein Investment Co., 140 S.W. 921; Kropp v. Hermann Brewing Co., 119 S.W. 1066; Strauss et al. v. American Chewing Gum Co., 114 S.W. 73; Badger Lumber Co. v. Muehlebach, 83 S.W. 546, 109 Mo.App. 646; Hendley v. Globe Refinery Co., 79 S.W. 1163, 106 Mo.App. 20; May et al. v. Crawford et al., 51 S.W. 693, 150 Mo. 504; Cogan v. Cass Avenue & Fair Grounds Railway Co., 73 S.W. 738, 101 Mo.App. 179; Ford v. Dyer, 49 S.W. 1091, 148 Mo. 528; Reichenbach v. Ellerbe, 22 S.W. 573, 115 Mo. 588; Wolff v. Campbell, 19 S.W. 622, 110 Mo. 114; McGoffin v. Missouri Pacific Railway Co., 15 S.W. 76, 102 Mo. 540.

Davis & Damron for respondents.

(1) The essential elements of a contract of sale are: an agreed price, a vendor, a vendee, an agreement of the former to sell for the agreed price, and an agreement of the latter to buy for and to pay the agreed price. The contract sued on in this case lacks some, if not all, of these elements. Kingman Plow Co. v. Joyce (Mo. App.), 184 S.W. 490, l. c. 492. (2) The intention of the parties must be derived from examination of the whole contract, and such examination shows clearly that it was an agency contract and not a conditional sales contract. Watkins et al. v. Donnell et al., 179 S.W. 980 Mo. App.; Kingman Plow Co. v. Joyce, supra; Piano Co. v. Williams, 167 Mo.App. 515; The Weir Plow Co. v. Porter, 82 Mo. 23; Peet v. Spencer, 90 Mo. 384. (3) Had appellant been entitled to its peremptory instruction when requested, it is estopped to urge error now because it offered and the court gave its instruction No. 2 submitting the controverted issues to the jury, and because said instruction No. 2 is inconsistent with said peremptory instruction. La Monte Bank v. Crawford, 27 S.W.2d 762.

HOSTETTER, P. J. Becker and McCullen, JJ., concur.

OPINION

HOSTETTER, P. J.

--This suit was instituted in the Circuit Court of Madison County on February 25, 1933, and is an action to recover the sum of $ 423.90, for the full value of certain farm machinery and implements furnished to defendants under a written contract between plaintiff and defendants.

The contract is one furnished by the plaintiff and is very voluminous, consisting of sixty-eight paragraphs in very fine print and under sub-heads of Notices (of which there are five paragraphs) Freight Notices (of which there are two paragraphs) Conditions of Sale (of which there are forty-seven paragraphs) Warranties (of which there are six paragraphs) and Exceptions to Warranties (of which there are eight paragraphs).

The petition alleges that plaintiff was duly incorporated under the laws of Missouri and that defendants were co-partners doing business under the name and style of Cooper Brothers and Son; that on February 16, 1932, plaintiff entered into a written contract with defendants wherein the latter agreed to handle and promote the sale of goods, wares and merchandise furnished by plaintiff; that on February 18, 1932, defendants requested plaintiff to cancel the written contract, which plaintiff then and there did; that thereafter on March 7, 1932, defendants requested plaintiff to reinstate said contract, advising that they were ready and willing to proceed to perform their part of same; that in accord with such request plaintiff at once reinstated said contract with defendants, and that, in accord with the terms of said contract plaintiff furnished defendants with merchandise, a detailed itemized account of which is set out in the petition, aggregating, as the contract price, $ 423.90, which is alleged to be due and owing to plaintiff from defendants together with interest, for which amount plaintiff prays judgment.

Defendants' answer contained an admission that they entered into the contract referred to in the petition and that they received the property mentioned therein, followed by a general denial of the other allegations in the petition.

It is further averred in the answer that under the terms of said contract they were given exclusive agency to sell plaintiff's farm equipment in the city of Fredericktown and vicinity as agents for plaintiff and that plaintiff was not to receive pay for said property until it should be sold; that the title to all of such property ever remained in plaintiff and at no time did defendants acquire title thereto; that some time after the execution of said contract and after the reception of the property and prior to July 27, 1932, the plaintiff breached said contract by consigning and delivering to one E. H. Kuhlman of Fredericktown, Missouri, for sale, property and farm implements of like kind and character delivered to defendants, notwithstanding the exclusive right and privilege of defendants of selling said property and equipment in said city and vicinity, and plaintiff permitted said Kuhlman to sell said property and farm implements at a less price than by the terms of the contract with defendants the latter were permitted to sell, so that defendants were unable to compete with said Kuhlman and to make sale of said property at the prices fixed by plaintiff under said contract; that when defendants learned of plaintiff's breach of said contract they tendered to plaintiff on or about July 27, 1932, all of said property then unsold by them and tendered plaintiff $ 69.02 in payment of all of said property sold by them, that being the full amount due plaintiff at that time for all property so sold theretofore by defendants, which property and money plaintiff refused to receive; that defendants since making said tender of money and property have ever held the same subject to the order of plaintiff, who may receive it whenever it elects so to do, and tenders the same into court for plaintiff's use.

Then defendants' counterclaim is set up in the answer, wherein, in substance, defendants claim damages in the sum of $ 500 by reason of their alleged loss on account of plaintiff breaching its contract by constituting Kuhlman as agent to sell in Fredericktown and vicinity tools and farm implements of like kind and character as those defendants were handling, because of the loss of profits sustained by defendants thereby.

The reply was a general denial of all the allegations contained in the answer and counterclaim.

It was admitted by the three defendants that they were partners and that they signed the printed contract. It was shown by testimony offered by plaintiff that the defendants requested the cancellation of the contract and that plaintiff complied therewith and later, that the contract was reinstated and the merchandise shipped and it was further stipulated by the respective counsel that the amount of money involved in the suit was $ 423.90.

John Cooper, one of the defendants, testified that in discussing the contract with Mr. Heddin, an agent of plaintiff, he (witness) said that they (meaning defendants) were to have the exclusive agency in Fredericktown and vicinity for the sale of the machinery. This testimony was stricken out upon request of plaintiff's counsel.

Witness John Cooper continued as follows:

That they (defendants) tried to sell the goods according to the contract and upon investigation found that Mr. Kuhlman another dealer in Fredericktown, was handling some of the same kind of machinery, shipped him by...