Miles F. Bixler Co. v. Riney

• Decision Date: 24 May 1928
• Docket Number: No. 4327.,4327.
• Citation: 7 S.W.2d 396
• Parties: MILES F. BIXLER CO. v. RINEY.
• Court: Missouri Court of Appeals

7 S.W.2d 396

MILES F. BIXLER CO. v. RINEY.

No. 4327.

Springfield Court of Appeals. Missouri.

May 24, 1928.

Appeal from Circuit Court, Stoddard County; W. S. C. Walker, Judge.

Action by the Miles F. Bixler Company against L. O. Riney. Judgment for defendant, and plaintiff appeals. Reversed and remanded.

Lentz & Ray, of Bernie, for appellant.

Creal Black, of Bernie, and Wammack, Welborn & Cooper, of Bloomfield, for respondent.

BRADLEY, J.

This is an action on a sales contract for the purchase of jewelry. The cause was tried before the court and a jury. Verdict and judgment went for defendant, and plaintiff appealed.

Plaintiff's petition is based on on alleged signed contract dated February 12, 1925, whereby defendant, according to the contract, purchased jewelry to the amount of $246, payable in six equal installments due in 2, 4, 6, 8, 10, and 12 months from date of invoice. The answer is a plea of non est factum and a further plea that defendant made an oral agreement with plaintiff through its traveling salesman whereby plaintiff was to ship the jewelry on consignment for one year, and at the expiration of the year plaintiff was to take back all the unsold portion thereof at the invoice price and that defendant was to pay only for the portion sold. The reply was a general denial and a plea that defendant was estopped to deny the execution of the contract.

Plaintiff received by mail from its traveling salesman, Acre, the alleged signed contract at its office in Cleveland, Ohio, February 14, 1925, and on same day, according to the deposition of A. F. Gibson, plaintiff's manager the order or contract was approved and its acceptance acknowledged. The letter of acceptance was as follows:

                                        "February 14, 1925
                

"L. O. Riney, Bernie, Mo.: We acknowledge with thanks your order for $246.00, which shall have our prompt attention. We inclose herewith a certified copy of the order as signed by you and forwarded to us by our salesman, this contains all conditions of your purchase. Terms of payments six equal amounts due in two, four, six, eight, ten, and twelve months from date of invoice, or 6% cent cash.

                                        "Miles F. Bixler Co."
                

The alleged contract, among others, contained the following paragraph:

"Advertising. We will mail one hundred and twenty-five people a personal invitation to call and inspect the line; names and addresses to be furnished by the purchaser. Purchaser to redeem these invitations at 50¢ each in jewelry at retail. We to redeem these invitations at 50¢ each in jewelry at retail when returned to us."

February 19, 1925, defendant wrote plaintiff as follows:

"Am sending you one hundred and 25 names; you said you would send out or back with coupons and do you give credit the fifty cents full value of them? Let me hear from you."

February 21st plaintiff mailed to defendant the invoice, and in the letter therewith, among other things, stated:

"We inclose you herewith invoice of jewelry sent in accordance with the terms of your signed order, to Bernie, Mo., via. American Railway Express to-day."

March 12th plaintiff wrote defendant regarding the advertising provision in the contract, and inclosed a card which defendant was requested to fill out and return. March 16th plaintiff received from defendant a signed post card containing the following questions and answers:

"Does the jewelry check up O. K. with invoice? No, short. Has the showcase arrived? Yes. Do you desire the payment plan making one-sixth due each two months from date of invoice? Ten months. Or do you desire to discount the bill 6%? No."

March 16th plaintiff received the following letter from defendant:

                                    "Bernie, Mo., 3-14-1925
                

"Miles F. Bixler Co.—Gent I have just checked the jewelry and find I am short, Nos. 6916 2263, 9914, 150, 5322, 9651. As payment on the jewelry I want ten months' time on it as that will give me the full trade."

April 7th plaintiff received from defendant the following letter:

                                            "Bernie, Mo
                

"Gent I am writing you in regards to the jewelry you have sent me would like very much for you to take it back I cant sell it and what I have sold they brought back. If you will take it back I will pay you for your trouble and during holly day I will by all my gifts from you. Please let me hear from you at once."

On May 11th plaintiff wrote defendant refusing to take back the jewelry, and reminded defendant that his "signed contract" amply covered the situation where jewelry was returned by defendant's customers. May 18th defendant wrote plaintiff and for the first time claimed the contract to be as pleaded in his answer, but not until August 16, 1925, did defendant deny that he signed the contract.

Defendant admitted that his alleged signature on the order or contract resembled his signature on the verified answer and other admitted signatures, but denied the signature on the order, and said that it was a forgery. He admitted that he received defendant's letter dated February 14th acknowledging receipt of the order and inclosing a certified copy thereof, and that the letter referred to the order "as signed by you and forwarded to us by our salesman," but he testified that he did not receive that letter until "along in May or the first of April."

For plaintiff, the court gave, among others, this instruction:

"The court instructs the jury that, if you believe and find from the testimony that plaintiff received from its traveling salesman the order or contract sued on and purporting to have been signed by the defendant on the 14th day of February, 1925, and that on the same day it made or caused to be made a true copy of said order or contract and mailed the same to the defendant, accompanied by a letter calling his attention to the said order or contract as having been signed by him, and explaining that the...