Koenig v. Truscott Boat Manufacturing Company
| Decision Date | 04 March 1911 |
| Citation | 135 S.W. 514,155 Mo.App. 685 |
| Parties | EDWIN C. KOENIG, Appellant, v. TRUSCOTT BOAT MANUFACTURING COMPANY, Respondent |
| Court | Missouri Court of Appeals |
January 10, 1911, Submitted on Briefs
Appeal from St. Louis City Circuit Court.--Hon. George C. Hitchcock Judge.
Judgment affirmed.
Theodore C. Eggers and Harmon J. Bliss for appellant.
(1) Where there is no evidence whatever to support a finding by a jury upon a particular issue a new trial should be granted by the trial court, and the refusal so to do is reversible error. Spooner v. Railroad, 23 Mo.App. 403; Doty v. Steinberg, 25 Mo.App. 328. (2) Where it clearly appears that the jury disregarded the instructions of the court the trial court should set aside the verdict and grant a new trial, and a failure so to do is reversible error. Payne v. Railroad, 129 Mo. 405; Hearne v Keath, 63 Mo. 84; Harlan v. Railroad, 64 Mo 480. (3) Where an instruction correctly states the law involving essential matters pleaded, supported by evidence, and at issue, it is reversible error to refuse the instruction. Hess v. Powell, 29 Mo.App. 411; Patchen v. Biggerstaff, 25 Mo.App. 534; Doan v. Railroad, 38 Mo.App. 408; Ridens v. Ridens, 29 Mo. 470; Cahn v. Reid and Bungardt, 18 Mo.App. 131; Gray v. McDonald, 28 Mo.App. 477. (4) When an erroneous instruction is given and the trial results in favor of the party at whose instance it was given, the presumption is that the error was prejudicial. State v. Taylor, 118 Mo. 153; Morton v. Heidorn, 135 Mo. 608; Barkley v. Cemetery Ass'n, 153 Mo. 300. (5) The measure of damages in action for breach of contract, is a matter of law for the court to declare in its instructions to the jury, and is not a matter for the jury to guess at or speculate upon. Rhodes v. Holladay-Klotz L. & L. Co., 105 Mo.App. 314; Morrison v. Yancey, 23 Mo.App. 675; Kick v. Doerste, 45 Mo.App. 134, and cases therein cited. (6) Where a contract for the sale of goods is still executory, that is to say, where the property in the goods has not been transferred from the vendor to the vendee, the remedy of the vendor for a failure or refusal to accept or pay for the goods is a personal action for breach of contract and not for the purchase price as on an account stated. 24 Am. and Eng. Ency. of Law, p. 1113; Northrup v. Cook, 39 Mo. 208; Wall v. Ice and Cold Storage Co., 112 Mo.App. 667; Fairbanks, Morse & Co. v. S.W. Heltsley & Co., 122 S.W. 198; Pittsburg, etc., R. Co. v. Heck, 50 Ind. 306; Webber v. Minor, 6 Busch, 463, 99 Am. Dec. 688; Duckham v. Smith, 5 T. B. Mon. 372; 2 Story on Contracts (5 Ed.), sec. 1035. (7) There must also be an acceptance of the property by the vendee before the title will vest in him, and the title will not vest in the vendee against his will. Until the title has passed the contract of sale remains executory, and recovery by the vendor can not be had of the purchase price. Rider v. Kelly, 32 Vt. 271; England v. Mortland, 3 Mo.App. 490; Hale v. Huntley, 21 Vt. 147; Jones v. Marsh, 22 Vt. 144; Gilman v. Hill, 36 N.H. 311; Comfort v. Kirsted, 36 Barb. 472; Johnson v. Hunt, 11 Wend. 137; Mixer v. Howarth, 21 Pick. 205; Ober v. Carson, 62 Mo. 209; Calhoun v. Paule, 26 Mo.App. 274; Schermerhorn v. Herold, 81 Mo.App. 461; Lovelace v. Stewart, 23 Mo. 384; Johnstone v. Parrott & Barnes, 92 Mo.App. 203; Frazier v. Railroad, 104 Mo.App. 360; Wright v. Trust Co., 144 Mo.App. 644; Van Horn v. Rucker, 33 Mo. 392; Rickey v. Tenbroeck, 63 Mo. 567; Kingsland & Ferguson Mfg. Co. v. St. Louis Iron Co., 29 Mo.App. 526; Halliday & Co. v. Lesh, 85 Mo.App. 285; Nelson v. Hirsch & Sons Co., 102 Mo.App. 498; Chitty on Contracts, 11 Am. Ed., p. 1331; Benjamin on Sales (5 Ed.), p. 805; Whitman v. Cotts, 14 Mo. 9; Northrup v. Cook, 39 Mo. 567; Gaibout v. Clark, 24 Mo.App. 426; Anderson Carriage Co. v. Gilmore, 123 Mo.App. 19; Brown v. Trinidad Asphalt Mfg. Co., 210 Mo. 273; Bolt and Nut Mfg. Co. v. St. Louis Car Co., 210 Mo. l. c. 726; Chapman v. Ingram, 30 Wis. 290; Shepherd v. Hampton, 3 Wheat 200; Allen v. Jarvis, 20 Conn. 38; Dana v. Fielder, 12 N.Y. 40; Davis v. Shields, 24 Wend. 322; Kingman v. Western Mfg. Co., 92 F. 486; Fairbanks, Morse & Co. v. S.W. Heltsley & Co., 122 S.W. 198; Pittsburg, etc., R. W. Co. v. Heck, 50 Ind. 303; Fell v. Muller, 78 Ind. 507.
J. D. Johnson and Loomis C Johnson for respondent.
(1) Appellant's first two assignments of error are not well taken, because, first, the question of "reasonable time" was not properly before the court below, and, second, there is nothing before this court going to show that the jury disregarded plaintiff's evidence as to reasonable time. (a) Testimony adduced in the court below in support of respondent's case, will be considered as proved by this court in considering the law applicable thereto. Womach v. Jenkins, 128 Mo.App. 412. (b) The evidence showed that as late as October 14, 1906, appellant agreed that respondent should have at least two weeks from that date in which to complete the boat, and that the boat was finished within the extended time. This constituted a waiver of the verbal understanding that the boat was to be completed by July 14, 1906, or the implied agreement that it was to have been completed within a reasonable time, and was binding on the appellant. Riley v. Ins. Co., 117 Mo.App. 235; Roach v. Trust, etc., Co., 130 Mo.App. 412. (2) Plaintiff's instructions 1 and 2 were both properly refused, because the evidence showed conclusively that the contract herein, though signed in Missouri, was to have been performed in the State of Michigan; such facts constituted a sale in the State of Michigan, and not in Missouri, and in no wise rendered defendant amenable to the laws of Missouri relating to foreign corporations doing business here without a license. State v. Wingfield, 115 Mo. 437; Brewing Co. v. Bobrecker, 79 Mo.App. 65; Hogan v. St. Louis, 176 Mo. 157; Blevins v. Fairly, 71 Mo.App. 259; Kerwin v. Doran, 29 Mo.App. 397; State v. Rosenberger, 212 Mo. 648. (3) Plaintiff's contentions that defendant's sole right of recovery was the difference between the contract price and the market price, is not correct. Dobbins v. Edmonds, 18 Mo.App. 307; St. L. Range Co. v. Mercantile Co., 120 Mo.App. 446; Campbell v. Woods, 122 Mo.App. 719; Black River L. Co. v. Warner, 93 Mo. 374; Mitchell v. Clair, 165 Mass. 305.
Plaintiff brought his action against defendant, a manufacturing corporation, organized under the laws of the State of Michigan, having its manufacturing plant in that state, to recover $ 1200 paid to defendant by plaintiff on a contract originally entered into between them at St. Louis, under which contract defendant agreed to complete and construct a gasoline motor boat for plaintiff according to certain plans and specifications for the sum of $ 5000; of this $ 1200 was to be paid at the time of entering into the contract, $ 1200 was to be paid when the engine of the boat was ready, $ 2600 when the boat was completed and trial made, or on delivery of the boat; it being understood that one Miller was to pay the sum of $ 500 on the final payment and should also pay the freight to St. Louis, Miller being the sales agent at St. Louis who had negotiated the contract with plaintiff. Of this purchase price plaintiff had paid $ 1200 when the contract was entered into. Averring that defendant had breached the contract in that it had wholly failed and refused to construct the boat and engine according to the plans and specifications agreed upon, plaintiff demands judgment for the $ 1200 and interest thereon.
The answer, after a general denial, sets up a counterclaim for $ 3800, averring that defendant had in all things performed the terms and conditions of the contract and had completed the boat according to the plans and specifications of the contract, and averring that defendant "has always been ready and willing to deliver the same to plaintiff upon payment therefor and is now ready and willing to do so," and that plaintiff has failed and refused and still fails and refuses to pay plaintiff the balance due when the boat was completed, defendant demands judgment for $ 3800 and costs.
By way of reply, after denying the new matter set up in the counterclaim, plaintiff charging that defendant is a corporation of the State of Michigan and that the contract was entered into in this state and that when the contract was made and down to the time of the filing of its answer defendant had not complied with the laws of this state requiring foreign corporations transacting business in this state to file a copy of their charters and to take out a certificate of authority to do business in this state, denied the right of defendant to maintain its counterclaim.
At the trial before a court and jury there was evidence tending to prove that a sales agent of defendant, located in St. Louis had there made the original agreement with plaintiff; that that agreement was transmitted to the home office of defendant at St. Joseph, Michigan, and acceptance of it declined unless certain material changes were made in it. Writing to this effect to plaintiff, the latter accepted the modification by letter. In the correspondence it appears that in negotiating for the building and purchase of the boat with Miller, the local agent, that this preliminary contract between plaintiff and defendant's agent, Miller, was entered into on the 12th of March, 1906. It also appeared that defendant's manufacturing plant was located at St. Joseph, Michigan, where the boat was constructed, and that it had no plant and did no work on the boat in Missouri. On July 23, 1906, the boat not having been completed, plaintiff wrote to defendant, stating that when he...
To continue reading
Request your trial