Pugsley v. Ozark Cooperage & Lumber Company

• Decision Date: 05 December 1911
• Citation: 141 S.W. 923,162 Mo.App. 360
• Parties: J. B. PUGSLEY, Respondent, v. OZARK COOPERAGE & LUMBER COMPANY, Appellant
• Court: Missouri Court of Appeals

141 S.W. 923

162 Mo.App. 360

J. B. PUGSLEY, Respondent, v. OZARK COOPERAGE & LUMBER COMPANY, Appellant

Court of Appeals of Missouri, St. Louis

December 5, 1911

Argued and Submitted October 13, 1911.

Appeal from St. Louis City Circuit Court.--Hon. George C. Hitchcock Judge.

REVERSED AND REMANDED.

Judgment reversed and cause remanded.

Geo. B Webster for appellant.

(1) The contract was not an executed one, but merely an agreement to purchase at a future time, so that the measure of the plaintiff's recovery was not the purchase price, but rather the difference between that and the market price at the time and place of delivery. Hence, it was error to give the plaintiff's third instruction and to rule out the defendant's evidence on market price. 1 Mechem, Sales sec. 501; 1 Benj. Sales (Am. notes), secs. 353-7; Brock v. O'Donnell, 45 N. J. L. 441; s. c. 49 N. J. L. 230; El. Co. v. Bravinder, 14 Wash. 315; Jackson v. Jones, 22 Ark. 158; Schneider v. Westerman, 25 Ill. 415; Hardwick v. Am. Can. Co., 113 Tenn. 657; Fordice v. Gibson, 129 Ind. 7; Zwisler v. Storts, 30 Mo.App. 163; Glass v. Blazer Bros., 91 Mo.App. 567. Drug Co. v. Benedict, 104 P. 437. The plaintiff himself testified that at the time of making the contract only "about 300,000" hoops were manufactured and on the yard. Hence the 70,000 hoops involved in this appeal were yet to be manufactured, and the title to them did not therefore pass on the making of the contract. Deutsch v. Dunham, 72 Ark. 141; Comfort v. Kiersted, 26 Barb. 472; Parsons v. Woodward, 22 N. J. L. 196; McConihe v. Railroad, 20 N.Y. 495; Iron Co. v. Pope, 108 N.Y. 232; Schneider v. Westerman, 25 Ill. 415; Johnson v. Hibbard, 29 Ore. 184; Tufts v. Lawrence, 77 Tex. 526. (2) The general rule is that the measure of damages when the buyer fails to receive the goods is the difference between the contract price and the market price at the time and place of delivery. Nelson v. Hirschberg, 70 Ark. 39; Morris v. Cohn, 55 Ark. 401; Brown v. Asphalt Co., 210 Mo. 260; Bank v. Ragsdale, 171 Mo. 168; Nelson v. Hirsch I. Co., 102 Mo.App. 498; Parlin Co. v. Boatman, 84 Mo.App. 285; Weltner v. Riggs, 3 W.Va. 445, 33 Cyc. 599. (3) There was no sufficient evidence to support a verdict against the defendant in this case. The court properly instructed the jury that if they found from the evidence that the Ozark Cooperage & Lumber Company took over the assets of the Ozark Cooperage Company without paying an adequate consideration and without paying the debts of the latter, then the defendant was liable if the cooperage company was. The court also charged that the burden was on the plaintiff to prove such facts. There was no evidence whatever to sustain a verdict under these instructions. The undisputed testimony of the witnesses Charlot and Webster showed the payment of $ 100,000 in preferred stock, worth par value for assets invoicing $ 103,000. This was an adequate consideration and relieved the defendant from liability. Warren v. Mayer F. & J. Co., 122 S.W. 1087; Hageman v. Railroad, 202 Mo. 249. (4) The instructions were conflicting, misleading and erroneous. Bahrenburg v. C. Schopp F. Co., 128 Mo.App. 526; Pollman C. Co. v. St. Louis, 145 Mo. 651.

J. M. Lashly and Glendy B. Arnold for respondent.

(1) There are no exceptions before this court for review. Appellant's abstract of the record proper fails to show that any bill of exceptions was signed by the judge who tried the cause, or that any bill of exceptions was ordered filed by said trial judge or by an order of court. Harding v. Bedoll, 202 Mo. 625; Stark v. Zehnder, 204 Mo. 442. (2) There being no motion for a new trial copied in the bill of exceptions, contained in appellant's abstract, there are no exceptions presented to this court for review; and this is true even though the motion for new trial is set out in the abstract of the record proper. These are jurisdictional requirements, and cannot be waived by the parties. Phillips v. Jones, 176 Mo. 328; Stark v. Zehnder, 204 Mo. 442, 449; Rose v. Township Board, 163 Mo. 396; Hutchinson v. Patterson, 226 Mo. 174; State v. Rhodes, 220 Mo. 9; Graves v. Terry, 219 Mo. 595. (3) A bill of exceptions is a part of the record when signed by the trial judge and by him ordered filed, but there should be a record entry showing the filing thereof, and this record entry should be properly abstracted as to show the facts. That the bill of exceptions has been made a part of the record must come from the record proper and not from the recitals in the bill itself." Harding v. Bedoll, 202 Mo. 625. (4) It is admitted by appellant that plaintiff was the owner of the hoops before the sale, and entitled to the purchase money. He was, therefore, the real party in interest. R. S. 1909, secs. 1729 and 1730. (5) The bank was but a trustee of an express trust. In such case, either the real party in interest or the trustee may sue. Chouteau v. Broughton, 100 Mo. 406; Ellis v. Harrison, 104 Mo. 270. (6) This action is to recover the purchase money for goods sold and delivered. The title to the hoops became vested in the Ozark Cooperage Company upon delivery thereof to the railroad hoop yard at Knobel, Arkansas. Lynch v. Daggett, 62 Ark. 592; Anderson-Tully Co. v. Rozelle, 68 Ark. 307. (7) The contract was entered into and performed in the State of Arkansas and, therefore, must be construed according to the laws of that State. Roach v. Type Foundry, 21 Mo.App. 118. (8) A sale of specific personal property may be final and complete where such is the intent of the parties, although something remains to be done subsequently by the seller as part of the consideration of the contract, as to deliver the property at a place mentioned." Lynch v. Daggett, 62 Ark. 592. (9) Where goods have been sold and delivered and the title thereto has become vested in the purchaser, the measure of damages is the purchase price. 5 Cyc. 599; Evans v. Railroad, 26 Ill. 189; 2 Joyce on Damages, sec. 1689. (10) When one corporation acquires all the assets of another corporation, issues its stock in exchange for the stock of the old company, and the old company ceases to be a going concern, and the new company continues the business, the new company receives the assets of the old company, burdened by its liabilities." Barrie v. Railways, 138 Mo.App. 557. (11) The appellate court will not consider exceptions to rulings of the trial court on instructions, unless the instructions are preserved in the bill of exceptions. State v. Hamlett, 212 Mo. 81; Thompson v. Reddick, 213 Mo. 564; Althoff v. Transit Co., 204 Mo. 172; Phillips v. Jones, 176 Mo. 328.

REYNOLDS, P. J. Nortoni and Caulfield, JJ., concur.

OPINION

REYNOLDS, P. J.--

This is an action on a written contract for the sale of 400,000 barrel hoops. The petition is in two counts, the first claiming $ 511.41, said to be the balance due on 330,000 hoops, the second claiming $ 507.50, said to be due on account of failure and refusal to accept and pay for 70,000 hoops. The contract given in evidence, in substance, sets out that plaintiff, in consideration of one dollar, to it in hand paid by defendant, "agree to sell" to defendant and the latter "agrees to purchase" from plaintiff, 400,000 six-foot hoops at $ 7.25 per thousand, and, to quote from the contract, "it being understood that all payments are to be made to the Bank of Knobel. All f. o. b. cars Knobel, Ark. Shipment to commence at once and continue thirty days. All of the above stock to be first-class of the grade mentioned, and to conform to standard specifications as understood by the trade. The count of all shipments to be guaranteed by party of the second part; party of the first part to credit up to party of the second part all stock found to be in excess of the amount called for by their invoice, and to deduct all shortages, both at contract prices. Terms: Thirty days net, or one per cent discount for cash within ten days from date of invoice."

The answer, after a general denial, pleaded payment and accord and satisfaction, as well as failure to deliver 70,000 of the hoops of the kind contracted for.

At a trial before the court and jury there was a verdict for defendant on the first count, under the direction of the court, and one for plaintiff on the second count in the sum of $ 507.50, judgment following accordingly. From the judgment against it, defendant appealed to this court.

We transferred the case to the Springfield Court of Appeals under the provisions of an act of the General Assembly of this state (Session Acts, 1909, p. 396, now section 3939, R S. 1909). There the judgment of the circuit court was affirmed on the ground that the abstract furnished by appellant failed to show that the motion for a new trial had been set out in the bill of exceptions, or there called for. The opinion of the Springfield Court of Appeals is reported under this same title 154 Mo.App. 386, 133 S.W. 859. When the case was transferred back to this court by the Springfield Court of Appeals in consequence of the decision of the Supreme Court in State ex rel. St. Louis Dressed Beef & Provision Co. v. Nixon et al., 232 Mo. 496, 134 S.W. 538, appellant, by leave of court, amended by interlining in the proper place in the abstract of the bill of exceptions, the words "Clerk will here insert same." The abstract as now amended as to this reads thus: "And afterwards, to-wit, upon the 18th day of November, A. D. 1909, at the same term of court, and within four days after the rendition of said verdict, defendant filed its motion for a new trial; which said motion is in words and figures as follows, to-wit: (Clerk will here insert some). (See ante, pp. 17-18.) And thereafter, to-wit, upon the 20th day of December, A. D. 1909, at the December, 1909, term, to which said...