Phillips v. Mastbrook
| Decision Date | 04 January 1887 |
| Parties | B. F. PHILLIPS, Respondent, v. A. MASTBROOK, Appellant. |
| Court | Missouri Court of Appeals |
APPEAL from the St. Louis Circuit Court, SHEPARD BARCLAY, Judge.
Reversed.
CREWS & BOOTH, for the appellant: The proof tends to establish a different cause of action from that sued on. Link v Vaughan, 17 Mo. 585; Barnum v. Stone, 13 Am. L R. 389. There was no contract for the sale and purchase of the whiskey, either express or implied. Allen's Adm'r v. Richmond College, 41 Mo. 301; Eads v City of Carondelet, 42 Mo. 113; 1 Pars. on Cont., 475; 1 Story on Cont., sect. 378.
O. B. GIVENS, for the respondent: One who receives goods sent to him, knowing that the sender claims that the receiver has purchased them of him, can not, in the absence of mistake or fraud, appropriate them to his own use, and then disclaim the purchase. Wellaur v. Fellows, 48 Wis. 105; Hale v. Van Dever, 67 Mo. 732; Coughlin v. Lyons, 24 Mo. 533; Button v. Railroad, 51 Mo. 153; Norton v. Railroad, 48 Mo. 337; Iba v. Railroad, 45 Mo. 469.
This is an action brought before a justice of the peace on the following account:
" January 23, 1883.
| 1 barrel gilt edge whiskey 37.87-100 P. gal. at $2.75 | $104.14 |
| Drayage | .50 |
| Interest to April 1, 1884 | 7.44 |
| $112.08" |
On trial of the cause in the circuit court, there was judgment for the plaintiff for $122.85, composed, according to the verdict of the jury, of $104.64 principal, and $18.21 interest at the rate of six per cent. per annum from April 23, 1883.
The defendant appealing assigns for error that the verdict and judgment are not supported by substantial testimony, and that the court erred in its rulings upon the admission of evidence, and in its instructions to the jury.
The plaintiff's testimony tended to show that he was, at the date of the transaction, a wholesale liquor dealer in Louisville, Kentucky, and that the defendant was a druggist in St. La. That one Webster was the plaintiff's agent, for the purpose of taking orders for goods, and transmitting the same to the plaintiff, who would fill them if satisfactory. That Webster had no power to receive or deliver goods, or to collect their proceeds. That, in January, 1883, Webster sent an order to the plaintiff to ship the whiskey in question to the defendant, and that the plaintiff thereupon did ship it, writing at the same time to the defendant as follows:
" LOUISVILLE, KY., January 23, 1883
Mr. A. Mastbrook, St. Louis, Mo.
DEAR SIR:--Enclosed find invoice and bill lading for goods shipped this day per your esteemed order through Mr. R. P. Webster, which I wish safe to hand and to your entire approval. I enclose your acceptance at 90 days in settlement of the bill, which please sign and return to me by mail. Awaiting your further commands, etc.
The defendant at once returned the enclosures to the plaintiff in the following letter:
" Mr. Phillips:
Received a bill and something like a note to sign and I don't know for what. I have not ordered a barrel of whiskey, I am sure. Have plenty of whiskey to last me three months. I, therefore, return all bills, etc. When I want whiskey will order with pleasure if whiskey will suit.
This letter was received by the plaintiff January 25, and he thereupon wrote and sent by return mail the following letter to the defendant:
" LOUISVILLE, KY., January 26, 1883.
Mr. A. Mastbrook, St. Louis, Mo.
There was no direct evidence that this letter was received by the defendant, but as it is shown that it was mailed on the 26th, and as the previous testimony shows it ought to have reached the defendant in the usual course of mail before January 29, the jury were warranted to infer that it did so reach him.
The whiskey arrived in St. Louis, January 29, consigned to the defendant, who received it, paid the freight thereon, and within a few hours thereafter turned it over on Webster's order to one Grabinsky, notifying the plaintiff of that fact. The testimony further tended to show that the plaintiff refused to recognize Grabinsky as his vendee and so notified the defendant. There was no evidence tending to show that the defendant ever gave, either to Webster, or to the plaintiff, an order for the goods, unless such inference can properly be drawn from the facts above stated. Nor was there any evidence of the value of the goods.
This was, in substance, all of the plaintiff's testimony bearing on the question of the sale. The defendant thereupon demurred to the evidence, and his demurrer was overruled by the court.
The question raised is, do all the facts thus shown constitute evidence of a contract of sale by the plaintiff to the defendant, or of any cause of action maintainable on contract. We are of opinion that they do not, and that the defendant's demurrer to the evidence should have been sustained. Clements v. Yeates (3 Mo.App. 581), which is the only case cited by the plaintiffs in support of the judgment, was reversed by the supreme court on appeal from this court. (69 Mo. 625). A previous request, or a subsequent promise, or facts from which such promise can be implied,...
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