Levine v. Hochman

• Decision Date: 02 June 1925
• Docket Number: No. 18778.,18778.
• Citation: 273 S.W. 204
• Parties: LIEVORKE v. HOCHMAN.
• Court: Missouri Court of Appeals

273 S.W. 204

LIEVORKE v.HOCHMAN.

No. 18778.

St. Louis Court of Appeals. Missouri.

June 2, 1925.

Appeal from St. Louis Circuit Court, Robert W. Hall, Judge.

Action by Philip Levine, doing business under the style and firm name of the Levine Bag Company, against Abe Hochman, doing business under the style and firm name of the Minneapolis Barrel & Bag Company.Judgment for defendant, and plaintiff appeals.Reversed and remanded.

Abbott Fauntleroy, Cullen & Edwards and Taylor R. Young, all of St. Louis, for appellant.

M. N. Sale, of St. Louis, for respondent.

DAVIS, C.

This is an action on a contract for breach of warranty, relative to a sale of secondhand bags.The court, at the close of plaintiff's evidence, announced that he would and did give an instruction to the jury, in the nature of a demurrer to the evidence, to find for defendant.Thereupon plaintiff took an involuntary nonsuit, with leave to move to set the same aside; the court later overruling a motion to that effect.In due time plaintiff perfected an appeal to this court.

Plaintiff's evidence tends to show:

That plaintiff was doing business in the city of St. Louis as Levine Bag Company, and that defendant was doing business in Minneapolis as Minneapolis Barrel & Bag Company.That by letter of February 9, 1922, defendant wrote plaintiff as follows:

"We would ask as to whether you would be interested in approximately 25,000 cotton seamless 16 oz. bags, some bright while others are dark, having small holes.We bought these bags from a malting company and if you can use them just as they run and as we are getting them from the company we can sell them to you at price of 11½c each, f. o. b. Mpls., subject to sight draft.If you would desire them in order we could sell them at 15c each, f. o. b. Minneapolis."

That by letter dated February 11, 1922, plaintiff wrote defendant as follows:

"We also requested you to send us average samples of those seamless, Mad we will let you know whether we can use them."

That by letter dated February 13, 1922, defendant wrote plaintiff as follows:

"We are sending you today via PP, six average run seamless bags which we can sell to you at price of 11½c each if you take them as they run or 15c in order, f. o. b. Minneapolis.When we say as they run we mean that we will guarantee half of these bags to be free from holes while the other half will have small holes which will require very little mending."

That on February 13, 1922, plaintiff wrote defendant as follows:

"Also let us know whether you have already sent us sample of your seamless, that we had requested you to send."

That on February 18, 1922, defendant wrote plaintiff as follows:

"The samples of seamless bags will show you how they run.We can sell them to you free from holes, patched, if you so desire or in mendable condition at prices quoted you in our letter of the 9th inst."

That on February 18, 1922, plaintiff telegraphed defendant as follows:

"Received samples of seamless will accept five thousand Wire if you will sell entire lot at a lower price and state how many in the lot and if all bags are like samples Can you sell additional one hundred pound misprints."

That on February 20, 1922, defendant wrote plaintiff as follows:

"We are in receipt of the following telegram from you: Received sample seamless will accept five thousand Wire if you will sell entire lot at lower `price and state how many in the lot and if all bags are like sample Can you sell additional one hundred pound misprints.'We called you by long distance and sold you approximately 17,000 seamless 16 oz. bags at price of 11c each, f. o. b. Minneapolis, bags to be good and in mendable condition.We also confirmed this sale to you by the following telegram: 'Confirming conversation we have sold you between sixteen eighteen thousand sixteen ounce seamless bags eleven cents (11c) Minneapolis sight draft Bags good and mendable Shipment to be made this week.'We will take it up with railroad company and find out which will be the cheapest way to ship these bags and will make shipment this week."

That by letter of February 20, 1922, plaintiff wrote defendant as follows:

"This is in reply to your wire of February 20, where you confirmed us a sale of 16 to 18 thousand 16 oz. seamless at 11c f. o. b. Minneapolis.Draft attached to bill of lading, for good and mendables, free from junk, and that you ship those bags this week.Please make shipment as promptly as possible.We understood in your conversation over the phone that these bags will run about like the samples you sent us, and about 50% of them will be free of holes and patches."

That by letter of February 22, 1922, defendant wrote plaintiff as follows:

"We are in receipt of your letter of the 20th inst., and in answer to same wish to say that the seamless bags will be shipped this week.During our conversation when I said that 50% of these bags would run free from holes I meant that these bags would be mended.I want to make this clear to you and know that you will be more than satisfied with the bags."

That by letter of February 24, 1922, plaintiff wrote defendant as follows:

"We have your letter of the 22d, and note that you will ship us the seamless this week, which is satisfactory to us.We also note what you have to say with reference to 50% will be free of holes.However, we understood from your writing, and conversation over the phone, that at least 50% of those bags were to be free of holes and patches.In fact you stated about one-fourth or one-third of those bags would run small holes.Of course, we do not mind if there are a few mended bags in the lot, but we did not expect they should all be mended, those that are free from holes, as we would never be able to sell them that way, and besides your samples are practically free from holes with the exception of one."

The evidence further tends to show, by the later correspondence between the parties, that plaintiff received the bags on paying the sight draft attached to the bill of lading; that upon inspection plaintiff found practically none of the bags equal to samples, and the greatest margin unmendable, and advised defendant to have an inspector examine bags immediately; that the bags had been attacked by rodents, and some were wet and rotten; that the bags were in plaintiff's hands, subject to defendant's disposition, and that plaintiff wanted defendant to return the amount of the check with freight, amounting to $1,787.69, and that, upon defendant's failure to do so plaintiff would dispose of these bags to the best possible advantage and give defendant credit on account, advising promptly, and expecting defendant to pay the difference, together with the profit that he would make on a resale.However, the evidence further tends to show that plaintiff sold these bags to the Chase Bag Company for 20 cents each for No. 1, 18 cents for No. 1 with holes like six samples submitted; that of these bags sold to the Chase Bag Company 1,086 were according to sample; that 4,142 might be considered like the sample, only having holes; that 1,419 would be classified as No. 2 of lower grade than the sample; that they were of a different class of bags without holes but patched and soiled, showing wear; that by use of the words "free from holes" was meant a patched bag; that by "good and mendable" was meant a bag that could be patched and made fit for use; that in addition 6,342 bags were a still lower grade of sack, which had holes in them and required patches, and were not of the same quality as the 1,419 bags that were free from holes; that they required mending before they would hold wheat and could be used; that they were badly rat-chewed bags; that an additional 2,671 bags would not make bags, at least as compared to the sample; they might be termed, worthless, rejected; that this did not mean that they were worthless, for they had a price as junk at so much per pound; that 2,671 bags were rejected by the Chase Bag Company; that" these 2,671 bags were not worth over 2 cents each on the market; that the 6,342 bags in February and March, 1922, were worth 8 to 10 cents; that the fair market value of the 1,086 bags was 20 cents per bag, and of the 4,142 bags was 18 cents per bag; that the 1,419 bags were valued at 8 to 10 cents a bag; that the Chase Bag Company paid plaintiff for 4,142 bags 20 cents per bag, for 1,419 bags 14 cents per bag, and for 6,342 bags 12 cents per bag, making a total of $1,922.46 paid plaintiff by the Chase Bag Company for 12,989 bags.The record further shows that plaintiff was permitted to testify that defendant, on February 20, 1922, called plaintiff over the long-distance telephone and had a conversation with him; that in this conversation defendant stated to plaintiff that he had received his telegram with reference to the 5,000 seamless, and that defendant stated that he had as many as from 16,000 to 18,000 or perhaps 17,000 in the lot; that plaintiff had asked him whether the entire lot would run like the samples that plaintiff had received from defendant; that defendant had replied that they would absolutely; that the samples sent were the average samples; that plaintiff had inquired whether defendant would shave the price, to which defendant had replied that if he would take the entire lot he would make it 11 cents f. o. b. Minneapolis.

Such other facts, if any, as we deem pertinent, will later appear.

Omitting the first paragraph, plaintiff's petition is as follows:

"Plaintiff states that on or about the 20th day of February, 1922, plaintiff and the defendant entered into a contract, partly in writing and partly in parol, by the terms of which defendant agreed to sell, and the plaintiff agreed to buy, between 16,000 and 18,000 16-ounce seamless bags, 50 per cent. of which were to be free from holes, and the remaining 50 per cent. to be good and mendable seamless bags, in strict accordance with samples submitted prior thereto,...