Kansas City v. Ferd Heim Brewing Co.

• Decision Date: 02 March 1903
• Parties: KANSAS CITY v. FERD HEIM BREWING CO.
• Court: Missouri Court of Appeals

73 S.W. 302

98 Mo. App. 590

KANSAS CITY v. FERD HEIM BREWING CO.

Court of Appeals at Kansas City, Missouri.

March 2, 1903.

"MERCHANT" — MANUFACTURER — DEALER — APPEAL—SUFFICIENCY OF DECLARATION OF LAW—WAIVER OF VARIANCE.

1. Under Kansas City Charter, art. 5, § 78, declaring that the word "merchant" in the charter shall include every one who shall sell goods, wares, and merchandise at any store, stand, or place occupied for that purpose in the city, and Rev. St. 1899, § 8540, defining a merchant as any one "who shall deal in the selling of goods, wares, and merchandise at any store, stand, or place occupied for that purpose," a manufacturer is a merchant if he keeps in stock at a store, stand, or other place articles manufactured by him for sale in the ordinary course of trade.

2. A manufacturer is not a merchant if he only manufactures goods to fill orders from his customers.

3. A dealer is not necessarily a merchant, since he need not have a store, stand, or place in which to keep and sell his goods.

On Rehearing.

4. Where a declaration that under the proceedings and proof the plaintiff was not entitled to recover was offered and given at the trial of a case, the plaintiff is entitled to have the question of his right to recover under the pleadings and proof reviewed on appeal.

5. Rev. St. 1899, § 655, provides that when it shall be alleged that a party has actually been misled to his prejudice by a variance between the pleading and the proof of the adverse party, that fact shall be proved to the satisfaction of the court by affidavit showing in what respect he has been misled, and thereupon the court may order the pleading to be amended on such terms as shall be just. Held, that one who fails to avail himself of the section waives any variance.

Appeal from Circuit Court, Jackson County; J. H. Slover, Judge.

Action by Kansas City against the Ferd Heim Brewing Company. Judgment for defendant, and plaintiff appeals. Reversed.

A. W. Burnet, for appellant. Hardin & Taylor, for respondent.

BROADDUS, J.

This is a suit of the plaintiff against defendant, a corporation doing business in Kansas City, for merchants' and ad valorem and personal property taxes for the years 1898, 1899, and 1900. The defendant denied its liability for such tax, on the ground that it was not engaged in the business of a merchant, but that of a manufacturer. The trial court found for defendant, and plaintiff appealed.

The case turns upon a proper definition of the term "merchant." By section 78 of article 5 of the charter of Kansas City the word "merchant," when used in such charter, "shall be held to mean and include every person or co-partnership of persons, who shall deal in the selling of goods, wares and merchandise at any store, stand or place occupied for that purpose in Kansas City." Section 8540, Rev. St. 1899 (the same as section 6894, Rev. St. 1889) defines a merchant as follows: "Every person, corporation or co-partnership of persons who shall deal in the selling of goods, wares and merchandise, including clocks, at any store, stand or place occupied for that purpose, is declared to be a merchant." Substantially, the two definitions are the same. These definitions are somewhat different from that of the common law, and as such, of course, must govern. The question has been adjudicated in this state, the latest of which under the Constitution we are bound to follow. The last case that we have been able to find is that of State v. Richeson, 45 Mo. 575, in which it was held that: "One who manufactures and supplies goods to the previous orders of his customers alone, although he keeps on hand, but not for sale, the materials from which the manufactured articles are produced, is not a merchant within the meaning of the statute." But that: "In an action by the state against one engaged in the manufacture of white lead for exercising the trade and business of a `merchant without license' the state would make out a prima facie case by showing that defendant, after receiving orders from his customers, filled them the same and succeeding days. The natural inference would be that he kept the articles on hand, and to rebut this inference it was not sufficient to show that he might have manufactured the lead after the orders were received, but he should have shown that he did so manufacture it." In State v. West, 34 Mo. 424, it was held that: "To be a merchant, in the sense of the law, the dealer must have on hand goods, wares, and merchandise ready for sale and present delivery, and must also actually deal in the selling of the same. One who manufactures and...