Oliver v. Hirsch

• Decision Date: 09 May 1927
• Citation: 296 S.W. 840,222 Mo.App. 251
• Parties: JAMES OLIVER ET AL., RESPONDENTS, v. ZELDA HIRSCH, ETC., APPELLANT. [*]
• Court: Kansas Court of Appeals

296 S.W. 840

222 Mo.App. 251

JAMES OLIVER ET AL., RESPONDENTS, v. ZELDA HIRSCH, ETC., APPELLANT. ^[*]

Court of Appeals of Missouri, Kansas City

May 9, 1927

Appeal from the Circuit Court of Jackson County.--Hon. James H Austin, Judge.

Judgment affirmed.

Edwards Kramer & Edwards for respondent.

Mertsheimer & O'Donnell and Charles A. Stratton for appellant.

BLAND J. Arnold, J., concurs. Trimble, P. J., absent.

OPINION

BLAND, J.

This suit arose in a justice court by the filing therein by plaintiffs of the following statement:

"Plaintiffs state that at all times herein mentioned, they were copartners doing business under the firm name of Oliver Knitting Company with their principal offices in Philadelphia, Pennsylvania.

"That at all said times, the defendant was engaged in business under the trade name of Hirsch Dry Goods Company, in Kansas City, Missouri. That on or about July 15, 1921 at the special instance and request of the defendant plaintiffs sold and delivered to defendant goods, wares and merchandise aggregating $ 1080.

"That thereafter said defendant returned to said plaintiffs a portion of said merchandise aggregating according to the original invoice price, the total sum of $ 649.25.

"That plaintiffs were compelled to pay the freight charges on said returned merchandise amounting to $ 11.11.

"That said merchandise was wrongfully returned but plaintiffs accepted same and credited defendant's account with the invoice price of said returned merchandise, to-wit, $ 649.25, and charged said defendant's account with said freight charges and there is now due and owing from defendant to plaintiffs on account of said merchandise kept and on account of said freight charges, a total of $ 441.86 as shown by an itemized statement and duplicate invoice thereof hereto attached and marked 'Exhibit A.'

"That plaintiffs have made demand on the defendant for the payment of said balance but defendant refuses to pay same.

"Wherefore plaintiffs pray judgment against defendant for $ 441.86."

Defendant filed no pleadings as none is required of defendant in a justice court. There was a verdict and judgment in the circuit court in favor of plaintiffs in the sum of $ 527.82 and defendant has appealed. Respondent has not favored us with a brief.

The evidence tends to show that at Philadelphia, on July 15, 1921, plaintiffs shipped two cases of merchandise consisting of ninety dozen pairs of worsted hosiery, enclosed in pasteboard hosiery boxes, to the defendant at Kansas City and delivered them to the Philadelphia & Reading Railroad Company in Philadelphia for transportation "via Lehigh Valley, Clover Leaf, Rock Island thru car," freight prepaid; that the two cases were returned to plaintiffs on August 19, 1921, and when opened a number of cardboard boxes of hosiery were found empty. The cases returned contained fifty-four and one-half dozen pairs of hosiery, or thirty-five and one-half dozen pairs less than when they were shipped.

Plaintiffs introduced in evidence the deposition of their bookkeeper who described the system of bookkeeping used by them. The testimony of the bookkeeper tended to show that plaintiffs' books disclosed that on March 9, 1921, plaintiffs received from their sales representative in Chicago an order from the "Hirsch Dry Goods Company" for sixty dozen pairs of ladies wool hosiery, various sizes, at $ 13 per dozen and also an additional sixty dozens pairs of hosiery at $ 10 per dozen, as follows:

". . . for sixty dozen Ladies Wool Hosiery, various sizes, at $ 13 per dozen; also for sixty dozen additional, at $ 10 per dozen; as follows: fifteen dozen No. 501; fifteen dozen, 503; fifteen dozen, 515; fifteen dozen, 520, making a total of one hundred twenty dozen for a total of $ 1380."

A copy of the order was introduced in evidence but it does not purport to be signed by the defendant nor is there any evidence that it was so signed.

The witness further testified that some correspondence was had between plaintiffs and defendant; that, under date of July 21, plaintiffs received a letter from the defendant returning the bill of lading that had been sent defendant covering the shipment and stating that defendant "would not accept the shipment from the railroad station as they canceled the order in a letter dated June 25th." The witness testified that, "We, however, never received a letter from the Hirsch Dry Goods Company canceling the order. In fact, the first we heard from them was after the order was shipped and bills sent. The first we heard from them was under date of July 21st;" that thereafter plaintiffs telegraphed defendant that they "would not accept the return of the goods" and confirmed this by letter dated July 27th. Counsel for defendant at this state of the testimony made the following objection:

"I want to object to all this testimony as the pleadings of the plaintiffs state that they accepted the goods back and by the fact of accepting the goods they rescinded the contract. According to their pleading, the only question in issue is the shortage, or, as the pleadings say, they are the goods we kept. The contract was mutually rescinded, but, as plaintiffs say, defendant kept the goods. Now, the only question is, whether or not there is a shortage.

"THE COURT: I think the shorter way will be to read the deposition. It doesn't seem to be long."

An exception was taken to the ruling of the court. Counsel for defendant then stated--

"MR. MERTSHEIMER: I would like the record to show the same objection to the presenting of these exhibits as to the deposition, on the ground that they have nothing to do with the contract."

The exhibits were then introduced in evidence consisting of a letter of plaintiffs dated July 27, stating that plaintiffs were surprised to know that in defendant's letter of July 21, she would refuse to accept the shipment; that plaintiff had a regular order for the goods which was signed by defendant; that plaintiffs had no record of any cancellation and they could not accept cancellation where the goods were ordered and shipped according to specifications; a letter, dated July 29, 1921, written by defendant to plaintiffs in answer to plaintiff's letter of July 27, stating that defendant was again returning to plaintiffs the bill of lading covering the goods that were shipped "after we canceled order on June 25th," that defendant would not accept the goods under any consideration; that the goods were plaintiffs and asked that plaintiffs advise defendant on what railroad they wanted the goods shipped back to them; a letter from the Rock Island railroad company, dated Kansas City, Mo., August 13, 1921, addressed to plaintiffs, stating that the shipment had been delivered to the defendant, a copy of the credit invoice showing that on August 19, 1921, defendant was credited by plaintiffs with fifty-four and one half dozen pairs of hosiery amounting to $ 649.25 "for merchandise returned." Plaintiffs thereupon rested their case and a demurrer to plaintiffs' evidence was offered by defendant. When the demurrer was offered, defendant's counsel stated--

"I think the plaintiffs have not made a case. I think they can recover only by showing that the shortage occurred in our hands. They have not attempted to do that. We do not know whether there was a shortage or not. The only responsibility we can be held to is for shortage while in our possession. Now, as to whether or not we have the right to rescind that contract is not in question. The mere fact that we offered them back to the railroad, that the railroad carried them and that the plaintiffs accepted them, is evidence that the contract was rescinded. Now, unless they can show that that shortage occurred between the time that we got them and the time that they were delivered back to the carrier, they have failed to make their case."

Thereupon a colloquy occurred between the attorney for defendant and the court and the former insisted that defendant would be liable for the goods returned only in case the plaintiffs showed that they were lost between the time they were delivered to the Philadelphia & Reading Railroad Company by plaintiffs at Philadelphia and at the time they were delivered to the defendant in Kansas City, and not if any shortage occurred between the time the goods were delivered to the carrier at Kansas City by the defendant and shipped back to the plaintiffs. It was stated by counsel that a presumption rose that the shortage occurred after the defendant delivered them to the railroad at Kansas City for shipment back to Philadelphia.

The demurrer to plaintiff's evidence was then overruled. Defendant's evidence tends to show that defendant was doing business as the Hirsch Dry Goods Company in Kansas City; that the goods arrived in Kansas City in July or August, 1921, and that a Mr. Johnson, a transfer man, under orders from defendant picked up all goods at the railroad stations in Kansas City consigned to the defendant, but he was instructed not to take out these particular goods in controversy from the railroad station should they arrive; the defendant--". . . received this invoice from the plaintiffs, which they tried to ship regardless, she canceled it right away, so she ordered Mr. Johnson not to take these goods out as they would not receive it."

But Johnson made a mistake and took the shipment from the railroad and delivered it to defendant. When she received the shipment at her place of business she did not know from whom it came and an employee opened one of the boxes and found that it contained the hosiery shipped by plaintiffs. The box was immediately nailed up again and, without any of its contents being taken out, Johnson took them back to the freight station the next morning and...