Neenan Co. v. Tip-Top Plumbing & Heating Co., TIP-TOP

• Decision Date: 03 June 1968
• Docket Number: No. 24885,TIP-TOP,24885
• Citation: 429 S.W.2d 335
• Court: Missouri Court of Appeals
• Parties: NEENAN COMPANY, Respondent, v.PLUMBING & HEATING COMPANY, Appellant.

Page 335

429 S.W.2d 335

NEENAN COMPANY, Respondent, v. TIP-TOP PLUMBING & HEATING COMPANY, Appellant.

No. 24885.

Kansas City Court of Appeals, Missouri.

June 3, 1968.

Herbert Horowitz and Harry Weed, Kansas City, for appellant.

Edward F. Aylward, Kansas City, for respondent.

HOWARD, Presiding Judge.

This is a suit by respondent Neenan Company to recover the amount due as payment for certain copper pipe and tubing ordered by appellant and allegedly delivered by respondent, for which payment had not been made. Respondent recovered judgment in the trial court in the amount of $2,577.17, plus interest. Appellant has duly appealed to this court contending primarily that there is not sufficient evidence to show delivery of the merchandise in question. We shall refer to the parties by name or as they appeared below.

Neenan Company is a wholesale supplier of plumbing supplies and Tip-Top Plumbing & Heating Company is a company performing plumbing work. In the year 1965, Tip-Top bought a large amount of plumbing supplies from Neenan. For the months of February, 1965 to and including December, 1965, Neenan billed Tip-Top in the gross amount of approximately $75,000.00 for supplies purchased. These bills contained charges from more than 100 different invoices. There was a continuous course of business between these two parties during the year. The controversy involved in this case concerns a large order for copper pipe and tubing placed by Tip-Top with Neenan in June, 1965. The price for this order was well over $30,000.00. It was described by Neenan's salesman as being a 'truckload order' but there is no evidence as to what items made up the order and it is not otherwise directly described.

Neenan in turn ordered the copper pipe and tubing from Cerro Copper & Brass Company at Monsanto, Illinois. It appears that at least part of this order was delivered by Cerro to Tip-Top by two different trucks, the shipping date for the first truck being shown on Neenan's invoices as August 19, 1965 (Exhibits 20 and 21), and the shipping date for the second truck being shown in Cerro's bills of lading as August 20, 1965 (Exhibits 1 and 2).

Exhibits 20 and 21 are Cerro's customer packing list covering the merchandise shipped August 19. These two exhibits appear to be two pages of one document covering this shipment which was carried by Strickland Truck Line. These two exhibits show 32 items printed thereon. This truck did not contain all of the items printed on the customer packing list and as the truck was unloaded, the items delivered were marked and the items not on the truck were shown as still due on back order. Twenty-one of the 32 items printed on the packing list were actually delivered by this truck. Exhibit 20 consists of one sheet of the packing list and Neenan's Invoice No. 2891. This invoice lists every items shown on the sheet of the packing list to which it is attached but no prices are shown for the items not delivered. A dash is shown in the place where such price would normally appear and the letters 'BO' appear opposite the items not delivered. In similar fashion, Exhibit 21 consists of one sheet of the packing list plus Neenan's Invoice No. 3577. Again, the items not delivered are shown as back ordered and no price for such items is included in the invoice.

Exhibits 1 and 2 are bills of lading covering shipment by Cerro's own truck which departed from Cerro's yard in Monsanto, Illinois on August 20, 1965. One bill of lading (Exhibit 2) shows 6,360 pounds consigned to Tip-Top, and the other (Exhibit 1) shows 27,528 pounds consigned to Neenan. The truck driver testified that the shipment for Tip-Top was delivered to Tip-Top and the delivery thereof receipted by an employee of Tip-Top in his presence. The contents of this shipment is not further identified except that the truck driver did remember that it contained some soft copper tubing, among other things. He was unable to specifically designate or describe any particular item in this shipment.

The two invoices covering the items delivered by the first truck are dated August 25, 1965. Thereafter, on August 27, 1965, Neenan's Invoice No. 5588 (Exhibit 18) and its Invoice No. 5555 (Exhibit 16) were prepared. Invoice No. 5588 consists of the four items not priced but shown as back ordered on its Invoice No. 2891 (Exhibit 20). Neenan's Invoice No. 555 lists all seven items shown as not delivered and back ordered on its Invoice No. 3577 (Exhibit 21). However, only two of these seven items are charged for on Invoice No. 5555. The prices for the other items on the invoices are not extended and there is no charge therefor.

These four invoices, Nos. 2891, 3577, 5555, and 5588, were included along with others with which we are not concerned on Neenan's statement dated September 1, 1965. The total amont of this bill was paid by Tip-Top. Thereafter, when Tip-Top received its billing from Neenan on October 1, 1965, it deducted from the total amount of the October bill the amount of $2,775.73 which represented the total charges shown for Invoice Nos. 5555 and 5588. In other words, Tip-Top deducted the amount of the two invoices covering items not delivered by the first truck and shown as back orders on Neenan's invoices covering the deliveries made by the first truck. Tip-Top claimed that they had not received delivery of these items.

When this deduction was made by Tip-Top, Neenan's salesman, Mr. Lombardino, who had sold this order to Tip-Top, went to Tip-Top's place of business to attempt to get the matter straightened out. He testified that he worked for a week or ten days trying to determine what had happened. It was agreed between Lombardino and Nussbaum for Tip-Top that one item of 30 coils of 1/4 K soft (60's) in the amount of $192.78 had, in fact, been received and should be paid for. This item together with the sales tax thereon in the amount of $5.78 was apparently paid by Tip-Top. No further reference is made to this item and this reduces the shortage in payment to $2,577.17, the amount sued for.

As a result of Lombardino's investigation at Tip-Top's place of business, a...