Oester v. Sitlington

• Decision Date: 27 February 1893
• Parties: OESTER v. SITLINGTON.
• Court: Missouri Supreme Court

21 S.W. 820

115 Mo. 247

OESTER v. SITLINGTON.

Supreme Court of Missouri, Division No. 1.

February 27, 1893.

REPLEVIN — PLEADING — CONDITIONAL SALE — WAIVER.

1. In replevin against a sheriff the evidence showed that plaintiff had sold and delivered the goods to a third person, who had agreed to give his note therefor, but had not done so. Held, that it was error to instruct that plaintiff might recover if the goods were delivered upon condition of a note being given for them, and if no such note was given, without qualifying the instruction by requiring the jury to find that the condition had not been waived.

2. A plea of general denial in such action is sufficient to raise the question of waiver, since it puts in issue plaintiff's right to the possession of the property.

Error to circuit court, Jackson county; J. H. Slover, Judge.

Replevin by Nicholas Oester against William S. Sitlington. Plaintiff obtained judgment. Defendant brings error. Reversed.

The other facts fully appear in the following statement by MACFARLANE, J.:

The suit is replevin to recover from defendant, who was the sheriff of Jackson county, 50 barrels of whisky, valued at $2,900, to which plaintiff claimed the ownership. The answer was, in substance, a general denial. Plaintiff was engaged at Lawrenceburg, Ind., in distilling whisky and selling it at wholesale. One A. L Kohn was engaged in the wholesale liquor business at Kansas City, Mo. Plaintiff had in his employ a traveling agent named H. J. Bruning. The authority of the agent was limited to soliciting orders, which he was required to take subject to the approval of plaintiff. He was also required to ascertain and report the financial standing of those from whom he took orders. In September, 1889, Bruning received an order from Kohn for 25 barrels of whisky, which was approved and filled by plaintiff. The bill for this order was paid by Kohn. On the occasion of taking this order Kohn told Bruning that he was worth between $30,000 and $40,000, and was able to meet all accounts. This statement was reported to plaintiff, and he was informed by his agent that Kohn was financially good, and that he bought goods in large lots. On January 20, 1890, Bruning took another order from Kohn for 50 barrels of whisky. The order, as sent to plaintiff by his agent, was as follows, omitting address: "Mr. A. L. Kohn has this day bought of N. Oester & Co., Lawrenceburgh, Ind., twenty-five barrels Spg. '86 Bourbon, reg'd at $1.55; twenty-five barrels Spg. '87 Bourbon, reg'd at $1.40. Free storage to date of shipment. Terms, four months' accept., or four per cent. off cash. Ship April 1st." On January 29th plaintiff wrote Mr. Kohn in reference to this order as follows: "Dear Sir: Your order through our salesman, Mr. Bruning, came to hand, by which you order twenty-five bbls. Spg. '86 Bourbon at $1.55, regauged, and twenty-five bbls. Spg. '87 Bourbon at $1.40, regauged, 4 months' acceptance, or 4 per cent. off for cash. I am sorry to say that I cannot fill the order at these terms, for the price given above is net cash on the '86 goods, and for the '87 Bourbon I cannot take less than $1.45 regauged. If you are disposed to accept the goods at these figures I propose to take a note 4 months, bearing 7 per cent. interest. I shall be pleased to hear from you soon, and receive your order." On January 27th Kohn wrote plaintiff as follows. "Order for 50 bbls. whiskie giving to your agent to be shipped a month of March. Please let me know if you could ship same between the first and fifth of next month, and to date me the bill from March the first, and oblige." On January 31, 1890, Kohn wrote to plaintiff as follows: "Dear Sir: Your letter Jan'y 29th at hand. In regard to the price of Sprg. '87 at $1.45 instead $1.40, as your agent sold to me, I will say I was very well satisfied with the last goods I have bought of you, therefore I ordered the second time from your agent, but as you say in your letter a difference on the '87 goods will be 5 cents per gallon. On account the goods suits my trade I am willing to accept your proposition with 4 months at 7 per cent., but I expect a high proof goods, — about 102 to 103, — as per promise by your agent, and if goods will give satisfaction same as last time, you will have my trade all time. Please send me those goods about Feb. 5th by the cheapest line, and oblige." On the strength of this correspondence the whisky was shipped February 4, 1890. The bill of lading was issued by the Ohio & Mississippi Railway Company, showing that it had received from plaintiff, Lawrenceburg, Ind., 50 barrels of whisky consigned to A. L. Kohn, Kansas City, Mo. On the next day — February 5th — plaintiff wrote Kohn as follows: "Dear Sir: We have shipped the 50 bbls. Bourbon as ordered, and got the lowest freight rates obtainable. Inclosed you will find invoice, for which amount you will please send note 4 months, bearing 7 per cent. interest, or your draft with one per cent. off for cash. I hope the goods will arrive in due time, and give the best satisfaction, and that we may look for your future orders." Plaintiff never received any four months' acceptance, cash, or note from Kohn for the whisky. On February 20, 1890, plaintiff wrote Kohn again as follows: "Dear Sir: We have shipped you 50 bbls. whisky as per order Feb. 4, and have sent you invoice, B. L., etc., for same by mail, with the request to kindly send note dated from day of shipment on 4 months' time, drawing 7 per cent. interest, as per agreement or draft with one per cent. off for cash just as you prefer, but up to this date have not heard from you. Please answer, and oblige." Plaintiff afterwards came out to Kansas City, and found the defendant, as sheriff of the county, in possession of the whisky, claiming to hold it under writs of attachment against Kohn. It was shown by the deputy sheriff that Kohn's store was closed by the sheriff, and all its contents, including the whisky in question, taken under attachments. Nothing further was shown in regard to the attachment suits. This suit was commenced March 21, 1890. Upon this evidence the court gave the jury the following instruction: "The court instructs the jury that if A. L. Kohn bought from plaintiff the fifty barrels of whisky in controversy, and agreed to settle therefor by giving his note for four months, bearing interest at the rate of seven per cent., and if on this condition plaintiff delivered said whisky to said Kohn, and if upon receipt of said whisky, or within a reasonable time thereafter, said Kohn did not give to plaintiff his said note, and has never given said note to plaintiff, then your verdict must be for plaintiff. And further, the jury are instructed that they are the judges of what is, under all the circumstances of the case, a reasonable time for giving said note after receipt of said whisky by said Kohn." The court was asked by defendant, and refused, to instruct the jury that under the evidence they should find for defendant. The jury found for plaintiff, and judgment was entered accordingly, from which defendant appealed.

Henry Wollman and I. J. Ringolsky, for plaintiff in error. Lathrop, Morrow & Fox, for defendant in error.

MACFARLANE, J., (after stating the facts.)

1. The question here is whether the contract between plaintiff and Kohn,...