Krippendorf-Dittman Co. v. Huntriddick Mercantile Co.

• Decision Date: 16 December 1916
• Docket Number: No. 1920.,1920.
• Citation: 190 S.W. 44
• Parties: KRIPPENDORF-DITTMAN CO. v. HUNTRIDDICK MERCANTILE CO. et al.
• Court: Missouri Court of Appeals

190 S.W. 44

KRIPPENDORF-DITTMAN CO. v. HUNTRIDDICK MERCANTILE CO. et al.

No. 1920.

Springfield Court of Appeals. Missouri.

December 16, 1916.

Appeal from Circuit Court, Greene County; Guy D. Kirby, Judge.

Action by the Krippendorf-Dittman Company against the Hunt-Riddick Mercantile Company and another. From an adverse judgment, plaintiff appeals. Reversed and remanded.

Williams & Galt, of Springfield, for appellant. Patterson & Patterson, of Springfield, for respondents.

STURGIS, J.

The plaintiff is a manufacturer and wholesale merchant of shoes at Cincinnati, Ohio. The defendant is a retail merchant having two stores and places of business, one at Tulsa, Okl., and the other at Springfield, Mo. The defendant's principal place of business was at Tulsa, and the Springfield store was in the nature of a branch store. The defendant's purchasing agent was at Tulsa, and there bought goods for both stores. This suit is for the purchase price of a bill of shoes alleged to have been bought by defendant's buyer at Tulsa and shipped to defendant at Springfield. The defendant refused to receive or pay for this shipment. The defendant pleaded the statute of frauds (section 2784, R. S. 1909), and the trial court sustained a demurrer to the evidence and forced plaintiff to take a nonsuit.

The only question presented on this appeal is the correctness of the trial court's ruling that plaintiff could not recover because of its failure to show any contract or memorandum in writing signed by the party to be charged sufficient to satisfy the statute of frauds relating to the sale of personal property of greater value then $30. The plaintiff's evidence shows that its traveling salesman, with his samples, was at Tulsa, and there met the defendant's buyer, who gave him an order for certain shoes to be shipped to the Tulsa store, and for certain other shoes to be shipped to the Springfield store. The defendant's buyer selected the kind and quantity of goods sold, and the plaintiff's salesman wrote out the order or orders on blank forms used for that purpose, specifying the kinds, quantity, sizes, prices, etc., and forwarded same to plaintiff.

The order or orders were not signed by defendant or any one for it, and as defendant received and accepted the goods shipped to Tulsa, it becomes important to determine whether there was only one sale and order covered by the shipments or whether there were two separate and distinct sales or orders, one for the Tulsa store, and the other for the Springfield store. Recognizing that the receipt and acceptance of part of the goods takes a case out of the statute of frauds, the defendant, in its brief, says:

"The real question to be determined in this case is whether or not the trial court was correct in declaring as a matter of law that the evidence offered on behalf of the appellant disclosed the fact that there are two separate and independent contracts between the parties for the sale of goods, wares, and merchandise, and that the one sued upon was within the statute of frauds. If that evidence shows that the transaction by which these two orders for shoes were given embraced but one contract, then the judgment of the trial court should be reversed and the cause remanded. If that evidence shows that the two alleged orders upon acceptance by appellant were two separate and distinct contracts, then the judgment should be affirmed."

The defendant, in its brief, further says:

"The evidence tended to show that the traveling salesman made two separate written orders for the goods, neither of which was signed by the respondent or any one for it."

This, we think, is as strong a statement in defendant's favor as the facts will warrant. But defendant forgets that the demurrer to the evidence was based on the ground that the evidence conclusively showed that two distinct sale contracts were made. The evidence is that the traveling salesman filled up two order blanks, but this is not inconsistent with there being only one sale, since an inspection of the original...