Kansas City Disinfecting & Mfg. Co. v. Bates County

• Decision Date: 16 February 1918
• Docket Number: No. 18903.,18903.
• Parties: KANSAS CITY DISINFECTING & MFG. CO. v. BATES COUNTY.
• Court: Missouri Supreme Court

201 S.W. 92

273 Mo. 300

KANSAS CITY DISINFECTING & MFG. CO. v. BATES COUNTY.

No. 18903.

Supreme Court of Missouri, Division No. 2.

February 16, 1918.

Appeal from Circuit Court, Bates County; C. A. Calvird, Judge.

Action by the Kansas City Disinfecting & Manufacturing Company against Bates County. Judgment for plaintiff for less than claimed, and it appeals. Affirmed.

Plaintiff sued Bates county for the sum of $140, being the purchase price of 70 gallons of Killbug Insecticide, bought in September, 1911, by a sheriff of that county for use in the jail, the poorhouse, and the courthouse. On a trial before the circuit court, sitting as a jury, judgment was rendered in favor of plaintiff for the sum of $20 only, and plaintiff appealed.

The facts are brief, but unique and illuminating. Whether the case originated in the county court and traveled thence to the circuit court by appeal, or whether it was begun originally in the circuit court, is dark and doubtful. Be this as may be, the proceeding is bottomed upon an account for bug exterminator, which, date and merely ornamental externals omitted, reads thus:

"Sold to Bates County, Missouri, 70 gallons Killbug Insecticide at $2, $140. Killbug Insecticide, guaranteed by the K. C. Disinfecting & Mfg. Co., under the Insecticide Act of 1910. Serial No. 175."

To this account is appended the O. K. of one W. J. Bullock, with the statement, to wit:

"I ordered and received the above bill of goods for Bates county, as sheriff."

Upon the trial the president of plaintiff testified by deposition, and in order, possibly, to show the extent of the infection, he stated that plaintiff sold "this Killbug" to numerous counties in Missouri, Oklahoma, and Kansas, and the witness "judged" that a 70-gallon order was "a reasonable supply for a county like Bates county." The witness stated that, being advised that "these goods" would be delivered for use to the jail, the poorfarm, and the courthouse, he shipped the goods in 10-gallon cans, so that 20 gallons could be conveniently sent to the jail, 20 gallons to the poorfarm, and "so much" (meaning the remainder probably) to the courthouse. Plaintiff took the order from one, the said Bullock, then sheriff of Bates county, through a certain C. W. Meyers, as agent, to which latter as a commission for obtaining the order from Bullock, 40 per cent. of the amount of the order, or $56, was paid. Speaking of the valuable and lethal qualities of what the witness amiably, but perhaps euphuistically, denominated "these goods" he said:

"If there are any roaches shows up [sic] around the building it is used for them. If there are prisoners brought in, they spray their clothes and sometimes as you know, it is necessary to spray their person with it too. It is an insecticide. We sell it for insecticide, but it is a standard disinfectant. You can use it in a room like this, or any other room, say where one has had smallpox, or something like that. It is not for toilets, it is too expensive for that. It is all right to be used for that, but we do not recommend it for toilets, it is too expensive. * * * The name shows it will kill any bugs or germs it comes in contact with, any insects."

It also sufficiently appeared from this witness' testimony that many demands had been made upon defendant for payment, but that payment had never been made.

Bullock, sheriff when the Killbug Insecticide was purchased (utterly reckless of the inherent prohibitive richness of this concoction as a deodorizer for sewers et id mime genus), testified that he bought it as a disinfectant, or deodorizer, to discourage an offensive odor which came from the jail sewer, which sewer passed through or near the basement kitchen of the jail wherein the witness resided. He also said that during his term of office he might have bought as much as 320 gallons of disinfectant, and that there was already a barrel on hand when the witness took office, which latter, however, he had never used because he did not recognize it as disinfectant, but thought it was bridge paint. He was, he said, compelled to administer this insecticide to this sewer in portions of 3 or 4 gallons at a time.

Other testimony came into the case (over plaintiff's objection, but subject thereto), to the effect that when the case was tried (some two years after the sale here under discussion), there were yet on hand of divers disinfectants more than 320 gallons, a supply, some of the witnesses say, more than sufficient to last Bates county for ten years. Of this supply on hand more than 60 gallons thereof were made up of the remainder of the identical 70 gallons of Killbug Insecticide bought from plaintiff and now here in dispute. Testimony also came in over plaintiff's objection, and which was likewise admitted subject thereto, that the usual and customary price of standard disinfectants was from 75 cents to $1 per gallon. Other necessary facts, if such there be, will be set out in our discussion.

W. O. Jackson, of Butler, for appellant. D. C. Chastain, of Butler, for respondent.

FARIS, J. (after stating the facts as above).

Plaintiff complains that the court erred in refusing instructions numbered 1, 2, and 3, which were offered by plaintiff, but learned counsel does not favor us with any reasons for the faith which we assume is in him, nor does he furnish us with any authorities for the position which lie...