Krohn-Fechheimer Company v. Palmer
| Decision Date | 10 April 1920 |
| Citation | 221 S.W. 353,282 Mo. 82 |
| Parties | KROHN-FECHHEIMER COMPANY, Appellant, v. WILLIAM B. PALMER et al |
| Court | Missouri Supreme Court |
Appeal from Polk Circuit Court. -- Hon. C. H. Skinker, Judge.
Affirmed.
Herman Pufahl for appellant.
(1) The court erred in excluding that part of the order of November 2nd, which was to be shipped "at once;" also excluding the bill of lading for that part of the shipment. These were clearly competent to show: first, that defendants had no right to countermand any part of the order of November 2nd; second, that plaintiff's place of business was in Cincinnati, Ohio; third, they were especially important, in view of the fact that no place of delivery is mentioned in the order, and the defendant Palmer testified that defendants paid the freight on these goods, thereby clearly indicating that the place of delivery was at plaintiff's place of business, or at least that delivery to the railroad company in Cincinnati constituted delivery to defendants; and fourth that plaintiff delivered part of the goods; and that such delivery was to the same carrier, as that part of the order shipped on February 23rd. (2) The letters of November 24th and 30th were incompetent. Defendants had no right to countermand or cancel the order; therefore, all evidence as to the attempted countermand or cancellation of the order was inadmissible and incompetent. (3) The court correctly declared the law to be that the entire bill of goods ordered by the defendants on November 2nd constituted but one order or purchase. Rickey v. Tenbroeck, 63 Mo. 563; Earl Fruit Co. v. McKinney, 65 Mo.App. 220; Parlin & Orendorff Co. v. Boatman, 84 Mo.App. 72; Krippendorf-Ditman Co. v. Hunt-Riddick, 190 S.W. 44. (4) Even though the goods were to be manufactured afterwards yet the transaction was a purchase and sale. Pratt v Miller, 109 Mo. 78; Burrell v. Highleyman, 33 Mo.App. 183; Helmers, Betman & Co. v. Nagel & Co., 112 Mo.App. 202; Krippendorff-Ditman Co. v. Hunt-Riddick, 190 S.W. 44. (5) The plaintiff (vendor) had the right to treat the shoes as belonging to the defendants, ship them to defendants and recover the full purchase price. It was a completed sale, an executed contract, and not an executory contract or promise to sell. The title to the shoes vested in defendants; they became the owners of them, and are liable to the plaintiff for the contract price thereof. Benjamin on Sales (4 Ed.), sec. 788; 3 Parsons on Contracts (7 Ed.), pp. 209, 210; Pond v. Wyman, 15 Mo. 183; Steinberg v. Gebhardt, 41 Mo. 519; Dobbins v. Edmonds, 18 Mo.App. 318; Ozark Lumber Co. v. Chicago Lumber Co., 15 Mo.App. 561; Koenig v. Truscott Boat Mfg. Co., 155 Mo.App. 684; Oehler v. Fruit Co., 162 Mo.App. 454; Dehner v. Miller, 166 Mo.App. 504; Potato Growers' Assn. v. Prod. Co., 185 Mo.App. 1; Stewart Prod. Co. v. Com. Co., 189 Mo.App. 658. (6) Where the contract specifies no place of delivery, the presumption is that delivery is intended at the place of business of the seller, or to the carrier at such place. Comstock v. Affoelter, 50 Mo. 411; Blooms Sons' Co. v. Haas, 130 Mo.App. 122; Woldert Grocery Co. v. Pillman, 191 Mo.App. 24. (7) Defendants having accepted part of the goods purchased on November 2nd (that part to be shipped "at once"), this amounted to an acceptance of the entire order and of all the goods ordered. Rickey v. Tenbroeck, 63 Mo. 569; Earl Fruit Co. v. McKinney, 65 Mo.App. 229; Hollrah-Dieckman Co. v. H. & W. Cl. Co., 186 Mo.App. 213. (8) And, although they had attempted to countermand the order, yet, having afterwards accepted part of the goods, this amounted to a withdrawal of the countermand, and they became liable for the purchase price of all of them. Frederick v. Willoughby, 136 Mo.App. 248; Koenig v. Boat Mfg. Co., 155 Mo.App. 700.
Cunningham & Skinker for respondents.
(1) This is an action on an executory contract which was cancelled by the defendants and notice of such cancellation given to the plaintiff while it remained executory. The plaintiff is not entitled to recover the contract price and the judgment should be affirmed. Potato Growers Assn. v. Prod. Co., 185 Mo.App. 5. One party to an executory contract has the power to repudiate it, and the remedy of the other party, injured thereby, is an action for damages caused by the breach of the contract; he cannot thereafter himself perform and recover on the contract, nor in an action on the contract recover damages caused by the breach. Catalogue Co. v. Car Co., 120 Mo.App. 575; Printing Co. v. Cutlery Co., 143 Mo.App. 518; Fredericks v. Willoughby, 136 Mo.App. 244; American Pub. Co. v. Walker, 87 Mo.App. 503; Potato Growers Assn. v. Prod. Co., 185 Mo.App. 1; Fireworks Co. v. Polites, 130 Pa. St. 536. (2) The cancellation of an order for goods by the buyer is a revocation of the carrier's agency to receive them, and a delivery to the carrier under such circumstances is unauthorized. Catalogue Co. v. Car Co., 120 Mo.App. 581; Fireworks Co. v. Polites, 130 Pa. St. 536. (3) The acceptance by plaintiff of defendants' check for $ 71.05 enclosed in their letter which stated that it was "to pay our account in full to date," was an accord and satisfaction. "Where a tender is made upon condition, the person to whom it is made has no alternative but to refuse it or to accept it subject to the condition." Bartley v. Pictorial Review Co., 188 Mo.App. 639; Lightfoot v. Hurd, 113 Mo.App. 612; School Board v. Hull, 72 Mo.App. 406; Andrews v. Contracting Co., 100 Mo.App. 599; Cornelius v. Rosen, 111 Mo.App. 619; Knapp v. Syrup Co., 137 Mo.App. 472; Ward v. Packing Co., 145 Mo.App. 574.
BROWN, C. Ragland and Small, CC., concur. Woodson, J., absent.
This cause comes to us upon a certificate of the Springfield Court of Appeals, under the provisions of Section 6 of the Amendment of 1884 to Article 6 of the State Constitution. Plaintiff is a Shoe Manufacturing Company of Cincinnati, Ohio, which sells shoes to the trade by sample through its traveling salesmen. The defendants are general merchants who deal in shoes and other merchandise at Bolivar, Missouri.
The petition states that on November 2, 1915 "the defendants purchased from the plaintiff goods, ware and merchandise amounting to $ 181.65," and proceeds as follows:
It asks judgment for the amount so alleged to be paid with interest.
The answer is (1) a general denial, (2) that immediately after making their order of November 2, 1915, they countermanded that portion relating to the shipment to be made February 15, 1916, that the bill sued for was for goods to be included in that delivery, no part of which they had ever received, and (3) that they had on April 13, 1916, sent their check to plaintiff for the sum of $ 71.05, with the statement that it was in full of the amount due on account of said transaction and that the plaintiff had in due course received and cashed said check, whereby the claim sued on was settled and extinguished.
The plaintiff replied with general denial.
The order for the goods described in the petition was given through a traveling salesman of plaintiff who visited defendants' store for that purpose, and was written on two different printed blanks stating the style of the goods desired as well as the quantity. One of these contained the goods delivered on December 7, 1915, and was marked in a blank for that purpose "at once rush." The other contained the description of the goods sued for and was marked for delivery "on or about February 15th." Both contained the words "this order is not subject to countermand" also "no alterations or changes can be made in order after goods are cut." Neither paper was signed by anybody. They were in duplicate, one copy of each being retained by the salesman and transmitted to plaintiff. The other copy was retained by the defendants. Both were marked subject to approval by plaintiff. It does not appear that defendants were notified of its acceptance.
The plaintiff's testimony shows that all the goods were to be manufactured at its factory in Cincinnati; that on November 11, 1915, the leather was cut for the "rush" order; that on the 16th of the same month part of the material was cut for the delivery of February 15th, and the remainder on the 20th of the same month.
Under date of November 24th defendants wrote plaintiff as follows:
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