Luchow v. Kansas City Breweries Co.

• Citation: 183 S.W. 1123
• Decision Date: 06 March 1916
• Docket Number: No. 11886.,11886.
• Parties: LUCHOW v. KANSAS CITY BREWERIES CO.
• Court: Court of Appeal of Missouri (US)

183 S.W. 1123

LUCHOW v. KANSAS CITY BREWERIES CO.

No. 11886.

Kansas City Court of Appeals. Missouri.

March 6, 1916.

Appeal from Circuit Court, Jackson County; Thos. J. Seehorn, Judge.

"Not to be officially published."

Action by August Luchow against the Kansas City Breweries Company, with counterclaim by defendant. Judgment for plaintiff, and defendant appeals. Reversed, and cause remanded.

Cowherd, Ingraham, Durham & Morse, of Kansas City, for appellant. Gilmore & Brown, of Kansas City, for respondent.

JOHNSON, J.

Plaintiff, an importer doing business in New York, sued defendant breweries company for the contract price of a carload of imported beer, sold and delivered to defendant at Kansas City. The defense is that the sale was effected by false and fraudulent representations of plaintiff, relied and acted upon by defendant, and such fraud and deceit was the subject of a counterclaim filed by defendant. The verdict was for plaintiff on the cause of action pleaded in the petition and on the counterclaim, and defendant appealed.

Defendant is the proprietor of three large breweries in Kansas City, the output of which exceeds 300,000 barrels a year, about two-thirds of which is consumed in Kansas City. Plaintiff is the importer and distributor in the United States of certain brands of beer manufactured in Europe, and, at the time of entering into the contract with defendant in controversy, had a limited trade in Kansas City which he supplied through his Chicago distributor. In February, 1912, he sent his traveling salesman, Carl C. Ordwein, to Kansas City for the principal object, successfully accomplished, of inducing defendant to take the agency for handling and distributing plaintiff's beer in Kansas City and vicinity. On February 14th, Ordwein, acting for plaintiff, and Conrad Mann, defendant's secretary and treasurer, entered into an agency contract, pursuant to which defendant ordered a carload of beer which, in due time, was delivered. Defendant received and properly stored the beer and made diligent efforts, through its sales department, to place it on the retail market, but was wholly unsuccessful. The beer was kept in storage until it spoiled, and then was returned to plaintiff, who, being entitled under the contract to the return of the casks, received the shipment and, ascertaining that the beer was spoiled, emptied it into the public sewer.

The only controversy between the parties is over the question of defendant's right to recover on its counterclaim, and this right is predicated of the alleged fact that defendant was induced to enter into the contract by fraud and deceit on the part of Ordwein, who falsely represented to Mann that about 40 saloon keepers in Kansas City (a list of whom he furnished to Mann) were selling plaintiff's beer, that their sales amounted to 18 or 19 carloads a year, that there was an immediate demand by the trade for the kinds and quantities of beer included in the order Mann was induced to give, and that defendant, as the sole distributing agent in Kansas City, would handle at least 18 or 19 cars of plaintiff's commodity per annum. Mann states that he was not acquainted with the facts relating to the consumption of imported beer in Kansas City; that he relied on the statements made by Ordwein, and did not ascertain their falsity until after defendant's salesman had solicited the dealers named in the list furnished by Ordwein and discovered that only two or three were selling plaintiff's beer.

The principal negotiations between Mann and Ordwein were at a hotel, and the representations, as stated by Mann, were as follows:

"Mr. Adkin introduced Mr. Ordwein to me, as the representative of August Luchow, the representative and distributor, in the United States, of Pilsener Genossenschafts beer and Wurzburger. Mr. Ordwein told me they would like to be represented by a leading firm, like the Kansas City Breweries Company; and the first question I asked Mr. Ordwein was to furnish me with a list of their customers that were at that time using their beer. * * * He informed me he would furnish me such a list the next day. * * * He also informed me that at that time they were distributing about 18 carloads of beer a year in Kansas City, and the contract was drawn up the next day and signed at my office."

Referring to the list Ordwein gave him the next day, Mann said:

"He told me these men were handling Luchow's beer, that he was here visiting them and looking after the trade. Q. Did he say anything to you in regard to the amount of imported beer that was consumed annually, including all brands in Kansas City, that you remember of? A. He did not."

This testimony is contradicted by Ordwein, who states he told Mann that the list contained the names of saloon keepers who were selling imported beer of all brands; that their trade amounted to about 18 cars a year; and that, not having a distributing agency in Kansas City, plaintiff enjoyed but little of this trade, all of which, in his opinion, defendant could secure.

On May 9, 1912, more than two months after the delivery of the carload, Ordwein wrote defendant from New York:

"Just having returned from a trip to the South, I was quite anxious to learn what progress you were making with the sale of our beers. Upon inquiry at the office, however, I was informed that you had not placed another order since purchasing the first carload. I regret this exceedingly as I was under the impression that you would use considerable quantities. You would greatly oblige me by letting me know whether anything has arisen to disturb our pleasant business relation or whether the delay in sending another order is simply due to dull business."

May 21st, Mann, writing for defendant, replied, in part:

"If you will recall our meeting at the Sexton Hotel, then you will also recall the first question I asked you, and that was, `How much beer you was selling annually in Kansas City,' and you informed me you were selling 18 carloads. I then asked you to give me a list of your customers and you turned a list over to me and I addressed a letter to each and every one of them and learned, to my astonishment, that hardly any of those men whose names appeared on that list turned over to me by you, had ever used any of your beers. In addition, the order which you received from one Johnson was canceled by him the day after you left Kansas City. We, of course, will have to do the best we can to dispose of the carload of beer now in our possession, which I assure you is a pretty hard job, and after that carload has been disposed of, you can rest assured no more beer will be ordered by the Kansas City Breweries Company.

"I do not care to go into detail, but I just wish to say this in conclusion that, if there is any complaint coming, it is our privilege to make such complaint, not yours nor Mr. Luchow."

May 28th, Ordwein wrote:

"I regret, of course, exceedingly that during our conversation my words should have caused such a serious misapprehension on your part as seems to...