Krummenacher Drug Co. v. Chouteau, No. 19754.

CourtMissouri Court of Appeals
Writing for the CourtBennick
Citation296 S.W. 255
PartiesKRUMMENACHER DRUG CO. v. CHOUTEAU
Docket NumberNo. 19754.
Decision Date07 June 1927
296 S.W. 255
KRUMMENACHER DRUG CO.
v.
CHOUTEAU
No. 19754.
St. Louis Court of Appeals. Missouri.
June 7, 1927.

Appeal from St. Louis Circuit Court; Franklin Miller, Judge.

"Not to be officially published.'

Action by the Krummenacher Drug Company against Henri Chouteau, doing business under the name of the Odeon Building Company. Judgment for defendant in justice court, and plaintiff appealed to the circuit court. Judgment for plaintiff, and defendant appeals. Affirmed.

H. Chouteau Dyer, of St. Louis, for appellant.

Jones Rocker, Sullivan & Angert and Ralph T. Finley, all of St. Louis, for respondent.

BENNICK, C.


This is an action for the balance due on the purchase price of a soda fountain and fixtures, alleged to have been sold by plaintiff to defendant. The case originated in a justice court, wherein the issues were found in favor of defendant. Plaintiff appealed to the circuit court, where, in a trial de novo, there was a verdict for plaintiff for $480, with interest amounting to $71.28, aggregating $551.28, and judgment was rendered thereon, from which defendant has appealed.

In the justice court, plaintiff filed a statement alleging that there was a sale of the fountain for the sum of $500, delivery thereof to be made by plaintiff, and accepted by defendant, within 30 days after the date of said agreement; that defendant paid plaintiff the sum of $20 as part payment, and agreed to pay the balance due within 30 days thereafter; that plaintiff had tendered and offered delivery of said property, and had demanded payment of the balance due, but that defendant had refused to pay the same.

There was no pleading filed by defendant, who thus tendered the general issue.

It appears from all the evidence in the case that in 1923, when the present controversy arose, plaintiff was engaged in the operation of a retail drug store at 5463 Delmar avenue, in the city of St. Louis, and defendant was the owner of the Odeon building, which contained an auditorium on the first floor used for theatrical purposes and had space for stores on both sides of the lobby. Mr. J. K. Gregg was manager of the Odeon building, and Mr. J. S. Alexander was employed as an assistant to him.

On September 16, 1923, plaintiff, desiring

296 S.W. 256

to sell a soda fountain, ran an advertisement in one of the daily papers, in response to which defendant called at plaintiff's place of business and inspected the fountain. Upon inquiry, he was informed that the, price of the fountain was $500. Defendant thereupon advised plaintiff that either he himself would return later, or that he would send a representative to make a part payment on the purchase price. It was understood that defendant would remove the fountain from plaintiff's store and convey it to the Odeon building.

On the following morning, Alexander called at plaintiff's place of business, in compliance with a direction from defendant, and paid plaintiff the sum of $20 as the first payment on the fountain, at the same time obtaining written permission from plaintiff to pay the balance of $480 within 30 days, and to leave the fountain in plaintiff's store during such period of time. About two weeks later, Gregg called and inspected the fountain with regard to the matter of removing it. The fountain was not taken away by defendant, and some time in October, plaintiff's manager called Alexander over the telephone and obtained his promise that the fountain would be removed on the following Monday. This was not done, however, and, on November 20, 1923, plaintiff wrote defendant demanding payment of the balance due on the account. No answer was received by plaintiff to this letter, and subsequently the account was turned over for collection to plaintiff's attorneys, by whom pa letter was written making a further demand. This letter was turned over to defendant's counsel by Gregg, who had authority from defendant to employ an attorney, and, on January 7, 1924, counsel wrote the following letter in reply, introduced in evidence as Plaintiff's Exhibit E:

"Your letter of January 4th addressed to the Odeon Building...

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9 practice notes
  • Span v. Coal & Mining Co., No. 27249.
    • United States
    • United States State Supreme Court of Missouri
    • 2 Marzo 1929
    ...discussions or negotiations for settlement, and, as a result, were clearly admissible. 22 C.J. 312; Krummenacher Drug Co. v. Chouteau, 296 S.W. 255; Lehmann v. Ins. Co., 183 Mo. App. 696; Moore v. Gaus, 113 Mo. 111; Hilburn v. Ins. Co., 140 Mo. App. 363; January v. Harrison, 199 S.W. 935; F......
  • Powell v. Schofield, No. 4596.
    • United States
    • Missouri Court of Appeals
    • 30 Marzo 1929
    ...of all favorable evidence in the whole case and may use defendant's evidence in support of his own. [Kummenacher Drug Co. v. Chouteau, 296 S.W. 255; Hague v. Threadgill, 236 S.W. 895.] 15 S.W.2d 877 In his second assignment defendant charges error in overruling his instruction in the nature......
  • Hayward v. People's Motorbus Co., No. 20041.
    • United States
    • Missouri Court of Appeals
    • 10 Enero 1928
    ...Co., 243 Mo. 305, 147 S. W. 1032; Walker v. Mitchell Clay Mfg. Co. (Mo. App.) 291 S. W. 180; Krummenacher Drug Co. v. Chouteau (Mo. App.) 296 S. W. 255. Moreover, it is axiomatic and but a reiteration of the above that the evidence for plaintiff must be regarded as true, so long as it is no......
  • Fitzpatrick v. Service Const. Co., No. 22183.
    • United States
    • Court of Appeal of Missouri (US)
    • 7 Febrero 1933
    ...of all favorable evidence in the whole case and may use defendant's evidence in support of his own. Krummenacher Drug Company v. Choteau, 296 S.W. 255; Hague v. Threadgill, 236 S.W. 895. Further, the court did not err in overruling defendant's instruction in the nature of a demurrer offered......
  • Request a trial to view additional results
9 cases
  • Span v. Coal & Mining Co., No. 27249.
    • United States
    • United States State Supreme Court of Missouri
    • 2 Marzo 1929
    ...discussions or negotiations for settlement, and, as a result, were clearly admissible. 22 C.J. 312; Krummenacher Drug Co. v. Chouteau, 296 S.W. 255; Lehmann v. Ins. Co., 183 Mo. App. 696; Moore v. Gaus, 113 Mo. 111; Hilburn v. Ins. Co., 140 Mo. App. 363; January v. Harrison, 199 S.W. 935; F......
  • Powell v. Schofield, No. 4596.
    • United States
    • Missouri Court of Appeals
    • 30 Marzo 1929
    ...of all favorable evidence in the whole case and may use defendant's evidence in support of his own. [Kummenacher Drug Co. v. Chouteau, 296 S.W. 255; Hague v. Threadgill, 236 S.W. 895.] 15 S.W.2d 877 In his second assignment defendant charges error in overruling his instruction in the nature......
  • Hayward v. People's Motorbus Co., No. 20041.
    • United States
    • Missouri Court of Appeals
    • 10 Enero 1928
    ...Co., 243 Mo. 305, 147 S. W. 1032; Walker v. Mitchell Clay Mfg. Co. (Mo. App.) 291 S. W. 180; Krummenacher Drug Co. v. Chouteau (Mo. App.) 296 S. W. 255. Moreover, it is axiomatic and but a reiteration of the above that the evidence for plaintiff must be regarded as true, so long as it is no......
  • Fitzpatrick v. Service Const. Co., No. 22183.
    • United States
    • Court of Appeal of Missouri (US)
    • 7 Febrero 1933
    ...of all favorable evidence in the whole case and may use defendant's evidence in support of his own. Krummenacher Drug Company v. Choteau, 296 S.W. 255; Hague v. Threadgill, 236 S.W. 895. Further, the court did not err in overruling defendant's instruction in the nature of a demurrer offered......
  • Request a trial to view additional results

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