Lokey v. Rudy-Patrick Seed Co.

• Citation: 285 S.W. 1028
• Decision Date: 14 June 1926
• Docket Number: No. 15704,15704
• Parties: LOKEY v. RUDY-PATRICK SEED CO. OF KANSAS CITY
• Court: Missouri Court of Appeals

285 S.W. 1028

LOKEY v. RUDY-PATRICK SEED CO. OF KANSAS CITY

No. 15704

Kansas City Court of Appeals. Missouri.

June 14, 1926

Rehearing Denied July 8, 1926.

Appeal from Circuit Court, Jackson County; Samuel A. Dew, Judge.

"Not to be officially reported."

Action by T.F. Lokey against the Rudy-Patrick Seed Company of Kansas City. From a judgment for plaintiff, defendant appeals. Reversed and remanded.

Swearingen & Finnell and Amos Townsend, all of Kansas City, for appellant.

Harding, Murphy & Tucker, of Kansas City, for respondent.

BLAND, J.

This is a suit on quantum meruit or for the reasonable value of a carload of Sudan grass seed delivered by plaintiff to the defendant. There was a verdict and judgment in favor of plaintiff in the sum of $4,237.34 and against the defendant on his counterclaim, and defendant has appealed.

The facts show that plaintiff, in the year 1916, was a wholesale seed merchant residing at Lubbock, Tex., and that defendant was a corporation located in Kansas City, Mo., engaged in the wholesale seed business; that R. T. De Moss and Ross M. Eldridge were at that time seed buyers and representatives of the defendant at Lubbock and vicinity; that on October 25, 1916, after negotiations between Eldridge and plaintiff, the latter signed the following writing:

"Hereby make sale to Rudy-Patrick Seed Company, Kansas City, Mo., one car of 40,000 pounds Sudan grass seed of good merchantable quality from the machine not trashy to be loaded at Tulia, Tex., on or before December 15, 1916. Consideration for the above seed to be 13 cents per pound f. o. b. loading station. The purchaser agrees to ship bags to hold above seed. Seller agrees to furnish certificate of the grower that above seed is free of Johnson grass.

"Accepted: T. F. Lokey, Tulia, Tex."

This proposition was duly accepted by the defendant on October 31, 1916. On November 8, 1916, plaintiff and one Yarborough, his employee, entered into another contract with the defendant through its agent Eldridge, reciting that defendant desired:

" * * * To purchase Sudan grass seed throughout entire growing section of which Lubbock, Tex., is the center during season of 1916 and the parties of second part agree to assist party of first part through agents or otherwise in making said purchases, agree to buy exclusively for party of first part, to report purchases as made, to buy at prices named by party of first part, to buy on recleaned basis except on lots otherwise agreed on, to pay expenses for buying."

This contract further provided that plaintiff and Yarborough should receive a commission of 50 cents per hundredweight for all seed bought for the defendant in addition to a sum equal to "one-half of the amount saved below price limit given to pay grower." The contract further provided that plaintiff and Yarborough should furnish defendant "25,-000 pounds Sudan grass seed at $14.75 per hundredweight on recleaned basis"; that defendant sould pay all ordinary expenses incurred in buying seed and furnish bags when required to sack the seed, and to pay any such expenses as might be incurred in assembling a carload, such as local freight and storage charges.

On November 27, 1916, plaintiff shipped 30,000 pounds of seed to defendant at Kansas City, and on December 9, 1916, he shipped 46,000 pounds. This 76,000 pounds of seed is not in controversy in this action. On December 16, 1916, plaintiff loaded into a car at Tulia, Tex., 28,650 pounds of seed. This is the seed in controversy. Plaintiff's evidence tended to show that the reason that a car of seed containing 40,000 pounds was not loaded by December 15th to apply on the October contract was because defendant's representative Eldridge requested that the car which had been procured for that purpose on December 5th be used for shipment of other seed and agreed that the shipment of the 40,000 pounds should be deferred. Eldridge at that time told defendant that he could deliver the 40,000 pounds of seed "any time during the season." Plaintiff testified that the word "season" meant any time to the end of February, 1917. On December 16, 1916, plaintiff was not hi Tulia, but his son, for him, on that day at that place, placed 28,650 pounds in the car in question. The son did not finish loading the car when the day closed, but intended to load the car so that it would contain 40,000 pounds, but on the evening of that day De Moss, representing defendant, billed out the car in his own name over the protest of plaintiff's son and shipped it to defendant. It had been the practice in shipping seed for plaintiff, when a car was loaded and ready to be shipped, to forward the bill of lading with draft attached, which was taken up by defendant, and plaintiff intended to do this in reference to the car of December 16th. On the 17th plaintiff's son learned that the seed in question was gone and on Monday, the 18th, he demanded the bill of lading from De Moss, but the latter refused to give it to him and informed him that he would deliver it to plaintiff at Lubbock, draft to be attached.

On the 18th plaintiff met De Moss at the hotel in Lubbock and the latter told him that he going to sign a draft on the company and deliver to plaintiff the bill of lading. Later plaintiff requested him to deliver the papers, but De Moss told him that he was waiting for a message from the defendant. Shortly thereafter De Moss left town without taking any further action. Before De Moss left, plaintiff, on several occasions, demanded payment for the car, and De Moss finally gave him a receipt for it. Up to this time there had been no contention that plaintiff had breached his contract. The first time that defendant claimed that the contract had been breached by plaintiff was December 26th. On December 21, 1916, plaintiff drew a draft upon defendant for the balance owing to him by the defendant; defendant having previous to the shipment of the last car paid plaintiff $1,500 on account. On December 21st plaintiff wrote defendant that he was making a draft on defendant, and saying that he was compelled to have the money to pay for the seed that he had bought for defendant's account; that he was having a great deal of seed delivered to him under his agency contract with the defendant; and that his customers were expecting to be paid for the seed when delivered and he must have the money to take care of his customers, and demanded the money without further delay. Defendant refused to pay this draft.

On December 26th defendant wrote plaintiff that it refused to pay the draft because the October contract called for 40,000 pounds of seed and up to date plaintiff had delivered only 12,526 pounds on the contract, leaving a balance of 27,474 pounds to be delivered. It seems that plaintiff and defendant agreed as to the application of the seed contained in the last car; 12,526 pounds was to apply on the October contract, and 10,157 was to apply on the November contract wherein plaintiff and Yarborough agreed to sell defendant. 25,000 pounds of seed at 14.75 cents per pound. which 10,157 pounds seems to have been the necessary balance to fulfill that part of the November contract, and 5,967 pounds under the latter contract wherein plaintiff and Yarborough agreed to buy seed for defendant. In its letter of December 26th, the defendant further stated:

"Before paying your draft we want some assurance as to what disposition you expect to make of the balance of the seed due us on the outright purchase contract of October 25th. While the delivery time of this contract expires on December 15, 1916, we are willing to grant you an extension of delivery until January 15, 1917. Please let us know by return mail as to the balance of the seed which we are entitled to according to the contract, and we will immediately advise you regarding the balance you claim due of $2,719.01."

The letter also stated that the amount of the draft was not for "the exact amount due you according to our traveler's invoices," and asked that plaintiff advise defendant as to how he arrived at the amount of the draft. On December 27th defendant wired plaintiff as follows:

"Ship the five lots referred to by local freight. Will honor draft bill lading attached thirteen cents per pound to apply on forty thousand car contract balance due on last car shipped will be paid when forty thousand contract is completed you need not worry about balance due as amount will be paid when your contracts are fulfilled."

On January 22, 1917, defendant wrote plaintiff's attorney at Lubbock, acknowledging receipt of a letter from the latter dated the 19th of January, in which the attorney stated that plaintiff had advised the attorney that he was in a position to furnish the balance due on the October contract, provided plaintiff could get the money for the seed which he had already shipped. Defendant wrote that it had been led to believe by the plaintiff that the latter did not intend to fulfill his contract and that it did not want to resort to the courts for the purpose of requiring him to do so, and suggested that plaintiff put up a bond to show his good faith in the matter of fulfilling his contract, whereupon it would pay the balance due plaintiff on the seed that had been shipped to defendant, or that plaintiff could ship in individual lots and attach bills of lading to drafts, and defendant would pay the latter, and, when plaintiff had shipped enough seed to complete his contract, it would honor his draft for the balance due "on the seed already shipped"; that it did not intend to pay him the "balance due on the seed" that had been shipped, unless it had assurance other than plaintiff's own word "that the contract would be completed."

Considerable correspondence was had; plaintiff insisting that the draft be paid before he shipped any more seed to the defendant because he had not been assured that he would ever be paid, and defendant insisting upon being assured that the contract...