Jones v. Werthan Bag Co.

• Decision Date: 11 June 1923
• Docket Number: No. 23487.,23487.
• Citation: 254 S.W. 4
• Parties: JONES et al. v. WERTHAN BAG CO.
• Court: Missouri Supreme Court

254 S.W. 4

JONES et al. v. WERTHAN BAG CO.

No. 23487.

Supreme Court of Missouri, Division No. 2.

June 11, 1923.

Rehearing Denied July 14, 1023.

Appeal from St. Louis Circuit Court; Chas. B. Davis, Judge.

Action by Robert McK. Jones and others, copartners doing business under the firm name of Robert McK. Jones & Co., against the Werthan Bag Company. Judgment for plaintiffs, and defendant appeals. Affirmed.

Jourdan, Rassieur & Pierce, and Stern & Burnett, all of St. Louis, for appellant.

Fordyce, Holliday & White, of St. Louis (Thomas S. McPheeters, of St. Louis, of counsel), for respondents.

HIGBEE, C.

This is an action to recover the purchase price of cotton sheetings sold and delivered to defendant. The plaintiffs, copartners, live in the city of St. Louis and represent the Henderson Mills Company at Henderson, Ky., which manufactures cotton sheeting. The defendant operates factories in St. Louis and other cities. On March 19, 1920, the plaintiffs, acting through William V. Jones, sold to the defendant 100,000 yards of cotton goods known as 4-yard, 37-inch, 48 square sheeting, unbranded, double cuts, for June shipment at 24 cents per yard, to be delivered f. o. b. at Henderson, Ky.; terms net, 10 days. Afterwards, on April 8, 1920, a second contract of sale was made for 150,000 yards of the same class of sheeting to be delivered one-third each in June, July, and August, at 25 cents per yard, f. o. b. Henderson, Ky.; terms net, 10 days. Later, at defendant's request, it was agreed to defer deliveries until late in July or August.

The 100,000 yards called for under the first contract were delivered in two shipments; the first, of 31,078 yards, was received by defendant on July 21, 1920; the second, of 68,114 yards, was received by defendant on August 31, 1920. Deliveries under the second contract were received by defendant as follows: 31,650 yards, August 19; 50,381 yards, August 17; 47,740 yards, September 2; 20,644 yards, September 10. The defendant paid for the first shipment under the first contract and for the first and second deliveries under the second contract. The action is on the other three deliveries.

The petition is in two counts. The first count declares on the contract of March 19, 1920; that the deliveries were delayed on defendant's request; that on July 9, 1920, plaintiff shipped to defendant 31,678 yards of said material at 24 cents per yard, and that defendant paid therefor on July 22, 1920, the sum of $7,602.72; that on August 20, 1020, plaintiff shipped to defendant 68,114 yards of said material which, at the contract price, amounted to $16,347.38, which goods were received by defendant, but defendant failed and refused to pay therefor. Wherefore plaintiff prays judgment with interest.

The second count declares upon the second contract of April 8, 1920; that deliveries were postponed; that on August 11, 1920, plaintiffs shipped defendant 31,620 yards of said material covered by said contract, which, at 25 cents per yard, amounted to $7,905; that said goods were received by defendant and paid for on August 31, 1920; that on August 17, 1920, plaintiffs shipped to defendant 50.381 yards of said material which, at the contract price, amounted to $12,595.25, which defendant received and paid for; that on August 24, 1920, plaintiffs shipped defendant 47,740 yards of said material which, at the contract price, amounted to $11,935; that defendant received said goods, but has not paid therefor; that on August 31, 1920, plaintiffs shipped to defendant 20,614 yards of said material which, at the contract price, amounted to $5,161; that defendant received said goods, but has not paid therefor, and that there is due plaintiffs from defendant under said contract the sum of $17,096, for which plaintiff prays judgment with interest.

The answer to the first count admits the contract as pleaded; that the first shipment was received on July 2, and paid for; that the second shipment was received on August 31, but was not paid for, but denies that the defendant ever accepted said shipments. It avers it was agreed the sheeting contracted for should weigh 4 yards to the pound; that it should have 48 threads each way to the square inch, and it was understood by plaintiffs that defendant intended to use the same to manufacture 93 to 98 pound flour bags for which said sheeting was the standard material; that it would have to be of first quality and free from defective weaves and when tested show a breaking strength of not less than 40 pounds in the filler and warp in order to be suitable for the manufacture of such bags, and that plaintiffs impliedly war: ranted that such material would be suitable for such purpose and comply in all respects with such warranty. The answer avers that said material was not of the quality contracted for; that it was not suitable for use for the manufacture of such flour bags; that it did not weigh 4 yards to the pound nor have 48 threads each way to the square inch, nor show a breaking strength at not less than 40 pounds in the filler and warp; that the weave was irregular and defective and the material was not of first quality, but was of defective quality commonly known as seconds, and was wholly unfit for the making of such bags; that shortly after the first shipment of 31,678 yards was received, defendant, believing it was of the quality represented and guaranteed by plaintiffs, and not knowing the true character thereof, caused the same to be calendered and made into bags, making 27,200 bags in all; that it sold 10,000 of said bags, but the remaining 17,200 bags, approximately 20,000 yards, are still on hand. The answer further avers that defendant inspected said material on August 28, 1920, and thereafter made further inspection and tests of the material received in the second shipment, and on September 14, 1920, rejected all of said material because it was defective in quality, as heretofore stated, and notified the plaintiffs of its rejection and requested disposition thereof; that it now holds said 17,200 bags and all of the second shipment, 68,114 yards, none of which was calendered or made' into bags, subject to plaintiffs' order. Further answering, defendant denies each and every other allegation.

The answer to the second count admits the contract and the postponement of the deliveries as pleaded; that defendant received the first shipment of 31,620 yards on August 19, and paid plaintiffs therefor on August 20, $7,905; that defendant received the shipment of 50,381 yards of said material on August 27, and paid plaintiff therefor the same day, $12,595.25; that defendant received the shipment of 47,740 yards of said material on September 2; that the contract price amounted to $11,935, and it has not been paid; that defendant received shipment of 20,644 yards of said material on September 10, which at the contract price amounted to $5,161; and that it has not paid therefor. The answer denies the acceptance of either of the shipments and pleads the same contract, warranties, representations, and breaches as are pleaded in defense to the first count, as also the rejection of said sheetings and notification thereof to defendant.

For its counterclaims, defendant pleads the execution of the contracts, the representations and implied warranties, breaches of the contracts and warranties, and seeks to rescind the contracts and to recover the sums paid for the various installments before the defects in quality were discovered. The reply is a general denial.

The jury returned a verdict for plaintiffs on each count of the petition, aggregating $34,953.85, and found for the plaintiffs on defendant's counterclaims. Judgment was rendered accordingly, from which defendant appeals.

The defendant's theory, as stated in the printed brief and argument of its learned counsel, is that—

"These contracts called for the delivery of a quantity of goods to be manufactured according to a certain description and to be delivered in installments, and that when, in the course of converting an installment to the defendant's manufacturing purposes, it appeared that said installment was not in accordance with the contract, the buyer had a right to rescind that and future shipments."

In other words, the defendant claims it was not required to:.aspect the goods when received, but if defects appeared when the sheetings were made into bags, the buyer might reject them and so notify the plaintiffs, and that such rejection would be timely.

It was conceded on the trial that the sheetings contracted for were to be 37 inches wide, weigh 4 pounds to the yard, with 48 threads to the warp and 48 threads to the filler in each square inch.

William V. Jones, one of the plaintiffs, testified:

I made the contracts in question with Morris Werthan, president of the defendant company, for the sale of the sheetings; that the contracts call for goods of first quality, and that sheetings known as seconds would not fill the contracts. There was nothing said about the sheetings being intended for flour bags, but I understood that was what he wanted it for; flour bags to ship flour in; they must have sufficient tensile strength Every bolt of sheeting is inspected at the mills when it comes off the loom for the purpose of separating them into first, seconds, and thirds. All goods to be firsts must weigh four yards to the pound and conform in a general way to the requirements. They must have sufficient tensile strength. No goods are absolutely free from flaws. Firsts are practically free from imperfections, but not absolutely. If they occur frequently, they are seconds. Seconds would not be used for flour bags. It is customary among bag people to examine the goods within 24 to 48 hours of their receipt. He would not have to open all the bales. The custom is to open a bale or two out of each shipment; two or three out of a shipment of twenty-five bales. It is not customary for a bag manufacturer to rely on the...