Mark v. H. D. Williams Cooperage Co.

• Decision Date: 29 May 1907
• Citation: 103 S.W. 20,204 Mo. 242
• Parties: MARK et al. v. H. D. WILLIAMS COOPERAGE CO.
• Court: Missouri Supreme Court

103 S.W. 20

204 Mo. 242

MARK et al. v. H. D. WILLIAMS COOPERAGE CO.

Supreme Court of Missouri, Division No. 1.

May 29, 1907.

1. APPEAL—REVIEW—RECORD—SUFFICIENCY.

The Supreme Court will not review the trial court's action on a motion to strike out parts of pleading, where the record does not disclose the parts affected by the motion.

2. JUDGMENT—CONFORMITY TO PLEADING.

Where the defendant's counterclaim fairly construed demanded payment for $2,831.42, or, taken without reference to items of damage, claimed $6,219, it was improper to allow a recovery of $9,046.30.

3. SALES—BREACH OF WARRANTY—COUNTER-CLAIM BY BUYER—EVIDENCE—SUFFICIENCY.

Evidence under a buyer's counterclaim in an action for the price of pipe held insufficient to show the sellers expressly warranted it as fit for, or knew that it was bought for, the particular use to which it was put.

4. SAME—IMPLIED WARRANTY.

Though pipe was not suitable for the use for which it was bought, if the sellers did not know the pipe was to be used in a cooperage factory's dry kilns to dry staves and heading, the buyer could not recover for injury to the staves or heading, or for loss of use of the kilns, under an implied warranty.

5. SAME — DAMAGES — VOLENTI NON FIT INJURIA.

Where a buyer of a steam pipe discovers its unfitness while installing it, he may not multiply actionable damages against the seller by using it.

6. SAME—LOSS OF GOODS IN TRANSIT—LIABILITY.

Where pipe is bought in C. to be delivered at E. for reshipment to the buyer at P., any shortage arising after the reshipment is the buyer's loss.

7. SAME—CONTRACT OF SALE—DISCOUNT.

Where under trade usage discounts in a contract for the sale of goods are expressed by using indifferently both kinds of fractions, in the absence of fraud or deceit, a buyer may not base a defense in an action for the price of goods upon his failure to comprehend discounts stated in mixed decimal and common fractions.

8. SAME—BREACH OF CONTRACT—MEASURE OF DAMAGE.

Where pipe was ordered and sold as of standard quality, and proved below standard quality, or worthless, the buyer could recover the difference between the market value of the pipe actually delivered and the value it would have had if up to the standard quality.

Appeal from Circuit Court, Butler County; J. L. Fort, Judge.

Action by Cyrus Mark and others, partners as the Mark Manufacturing Company, against H. D. Williams Cooperage Company. Judgment for defendant, and plaintiffs appeal. Reversed and remanded.

McKeighan & Watts, J. P. McBaine, and L. R. Thomason, for appellants. Phillips & Phillips, for respondent.

LAMM, J.

Plaintiffs, doing business as partners in Chicago, Ill., on June 20, 1902, sued defendant, a domestic corporation doing business in Butler county, Mo., for a balance due on the sale and delivery of certain black and galvanized pipe of sundry dimensions on two dates, to wit, March 22 and April 11, 1902. The petition counts on the theory that the agreed selling price of the pipe was $2,232.30, and that defendant had paid thereon $1,829.13, leaving a balance due of $403.17, for which amount judgment was prayed. At a trial in February, 1904, to the court without a jury, the issues were found against plaintiffs; they recovering nothing. On the other hand, the issues were found in favor of defendant on a counterclaim, and defendant recovered a judgment of $9,046.30. From this judgment plaintiffs appeal.

Both appellants and respondent served and filed abstracts under rule 11. Further, under that rule appellants filed objections to respondent's purported "full and complete abstract"; the bone of contention being over the trial answer. A question being raised on the accuracy of said answer as abstracted, and it being contended, furthermore, that both of the abstracts by misadventure were faulty, the matter came to a head by our ordering a duly certified copy of the amended answer to be sent up and filed here as part of the record. The record being perfected in this particular, no question is now raised but what we have before us, the true, trial answer, filed below on June 2, 1903. Plaintiffs filed a motion below to strike out parts of the answer, which motion was sustained in part; but there is no record here giving metes and bounds to the parts of the answer stricken out. True, the court's order in the premises refers to the answer as if divided into marked and numbered sections and paragraphs. But, if there were any such sections or numbers, they rested only in the mind's eye of court and counsel for purposes of their own nisi; and, not being saved in the record, all identifying earmarks of excluded matter are absent, and we have no light, unless we have recourse to mind reading — a method of supplying record not recognized by the law and implying an appellate ability of doubtful existence and doubtful value. Therefore, as the answer, taken by and large, stated a good defense on paper, a review of the ruling on the motion to strike out is out of the question.

Questions are made here calling for some particularity in dealing with the answer. Attending thereto, it appears defendant joined issue by a general denial, excepting therefrom specific admissions; the admissions being its incorporation and its payment to plaintiffs of the said sum of $1,829.13, which sum the answer avers was more than was due. On the theory of full payment (setting forth the facts upon which said theory proceeds) the answer alleges plaintiff's failure to deliver 1.284 feet of the pipe in suit, thus reducing the contract price by the value of such omitted pipe. Further, on such theory it is averred that the contract of purchase made by plaintiffs and defendant was in the form of a written correspondence, consisting of a proposal asked, an offer made, followed by an acceptance; that by that contract defendant was to pay on a basis of a certain schedule or printed list price, less certain specified discounts, and the point to a line of defense pleaded is based upon the proper construction of such discounts. To sufficiently indicate this line of defense, it will be necessary to take only one item of a long account as a sample of many others. Thus, one offer was in the form of a discount from the price list of a certain kind of pipe of "48.15-5 and 2½ per cent." Defendant avers that the figures "48.15," separated by a point as indicated, mean two discounts, one following on the heels of the other, to wit: first, one of 48 per cent.; and, second one of 15 per cent. — to be then followed by one of 5 per cent., one of 2 per cent. and one of ½ per cent. There is no difference between plaintiffs and defendant as to the meaning of the formula "-5 and 2½ per cent."; but they lock horns on the figures "48.15," which plaintiffs insist is one discount, expressed in integers and a decimal, meaning in trade usage the same as 48.15 per cent.

With this explanation it will be sufficient to say that the answer, on defendant's theory of the discounts, avers full payment of all the pipe delivered; that it accepted the offer on its theory of the discounts; that the custom of the trade was not to use the decimal system, but to use common fractions when called for in discounting schedule prices of pipe; and, further, that, if defendant did unintentionally misconstrue plaintiffs' offer, then its defense is that plaintiffs mixed the decimal system of quoting discounts with common fractions for the very purpose of deceiving defendant, and did deceive defendant into accepting the offer. Or, if plaintiffs acted in good faith in confusingly mixing decimal and vulgar fractions in its discount, then the minds of the contracting parties never met on the price, and, on that theory, also, defendant pleaded payment of the full market price of the actually delivered pipe, even if it was sound and marketable. The answer at length then sets forth a counterclaim in the following language (stress, for appellate purposes, being somewhat laid on italicized parts):

"Defendant, for further answer herein and in the nature of a set-off or counter claim to the plaintiffs' cause of action, says that plaintiffs are a partnership doing business in the city of Chicago, state of Illinois, and that the defendant is a corporation organized under the laws of the state of Missouri, and as such is running and operating a large, extensive, and expensive cooperage manufactory, at the city of Poplar Bluff, Butler county, Mo., and, as such, receives and fills orders throughout the civilized world. Defendant further says that on or about the 12th day of December, 1901, its factory, located near the city of Poplar Bluff, was burned and totally destroyed by fire. That thereafter plaintiff [defendant], in order to resume business at the earliest practicable moment, and at a great expense, began immediately to rebuild its factory and rehabilitate itself as a cooperage manufactory, and that in order to carry on its business and operate its factory it was necessary to have different lines of pipe, made of good material and of good quality, for the purpose of conveying steam and water to various parts of its factory, and to be used in operating its said factory; that its factory was nearing completion, which plaintiffs well knew, and also well knew the purpose for which said pipe was a necessity in said factory when it made its offer in writing to the defendant to sell said pipe; that at the time plaintiffs agreed in writing to sell and did sell, and defendant agreed in writing to buy and did buy a certain lot of pipe of different kinds and of various sizes and dimensions, as is set out in the exhibits attached to the petition, the plaintiffs well knew the purpose for which said pipe was brought and in what capacity it was to be used in defendant's factory, and plaintiffs also knew that it required pipe of good material and good quality to answer defendant's purposes; that the contract of the sale for the said pipe was agreed...