Puryear-Meyer Grocer Co. v. Cardwell Bank

• Decision Date: 03 March 1928
• Docket Number: No. 4303.,4303.
• Parties: PURYEAR-MEYER GROCER CO v. CARDWELL BANK.
• Court: Missouri Court of Appeals

4 S.W.2d 489

PURYEAR-MEYER GROCER CO v. CARDWELL BANK.

No. 4303.

Springfield Court of Appeals. Missouri.

March 3, 1928.

Appeal from Circuit Court, Dunklin County; W. S. C. Walker, Judge.

Action by the Puryear-Meyer Grocer Company against the Cardwell Bank. Judgment for defendant, and plaintiff appeals. Affirmed.

Robert E. Fuhr, of Jonesboro, Ark., and Smith & Zimmerman, of Kennett, for appellant.

John T. McKay and L. R. Jones, both of Kennett, for respondent.

BAILEY, J.

This is an action for money had and received.

The petition states that plaintiff purchased 10 bales of cotton from one J. L. Stoker on October 28, 1920, which cotton, at the time, had been consigned by the said J. L. Stoker to Wilson-Ward Company, cotton factors of Memphis, Tenn., and at the time held by said factors in their warehouse at Memphis; that the said Stoker, in compliance with contract of sale, assigned and transferred bills of lading, representing the cotton sold, to plaintiff; that on November 20th thereafter, at the direction of plaintiff, said factors sold five bales of said cotton, which netted $541.54, a check for which was made to said J. L. Stoker; that the check duly indorsed, was exhibited by Stoker to defendant; that defendant, with full knowledge that the check was property of plaintiff, cashed same, and wrongfully applied the proceeds to an indebtedness owing defendant by J. L. Stoker.

The answer is quite voluminous, and, after setting out in full the contract referred to in plaintiff's petition, pleads in the alternative that the contract was made either in Arkansas or Missouri; that it was neither acknowledged nor recorded in either state; that the contract was void under the Arkansas statutes and decisions, which are pleaded, and also under the laws of the state of Missouri; that the cotton was never delivered to plaintiff; that the plaintiff had no lien or title thereto; and that the proceeds from the check were properly applied by defendant to its debt. The reply admitted the law of Arkansas pleaded, but denied the contract referred to did not constitute a valid sale of the cotton. The pleadings raise many other points, of which mention need not be made. On defendant's motion, judgment was rendered for defendant on the pleadings, and plaintiff has appealed.

It is conceded by both plaintiff and defendant that the sole question in the case involves the proper construction to be placed on the contract between plaintiff and Stoker, as set out in defendant's answer. The contract is as follows:

"Contract of Sale.

"This contract entered into in duplicate between J. L. Stoker, first party, and Puryear-Meyer Grocery Co., a corporation second party, witnesseth:

"Whereas, first party is indebted to second party in the sum of $2,581.90:

"Now, therefore, first party hereby sells and delivers 10 bales of cotton to second party as per bills of lading attached as a payment upon said indebtedness.

"The consideration allowed first party by second party for said cotton is what the second party shall realize from the sale of said cotton, less freight, drayage, insurance, and commissions.

"No limitations are imposed upon second party in the sale of said cotton. If the net proceeds arising from the sale of said cotton by the second party shall exceed the above indebtedness, the excess shall be paid to the first party.

"Witness our hands in duplicate, on this the 28th day of October, 1920.

                                  "J. L. Stoker
                                      "Party of First Part
                                "Puryear-Meyer Grocer Co
                                     "By J. L. Edwards
                                         "Second Party."
                

Defendant contends this contract should be construed as an assignment of collateral, and not a contract of sale. The legal effect of the contract is a matter for the court's determination.

Under the pleadings in this case, it is uncertain whether the contract was made in Missouri or Arkansas, but, in either event, its interpretation is based on the common law. Since the common law of Arkansas in relation to this contract is not pleaded (the only law pleaded was as to the Arkansas recording act), this court will follow the precedents of this state in expounding the rules of the common law applicable to the transaction. Tennent v. Union Central Life Ins. Co., 133 Mo. App. 345, 112 S. W. 754.

It is, of course, a fundamental rule of construction that the meaning of a written instrument is to be gathered from its four corners, and that, where possible, all words and phrases therein shall be given effect according to the ordinary meaning of the language used. Donovan v. Boeck, 217 Mo. 70, 116 S. W. 543; Buck v. Harris, 125 Mo. App. 365, 102 S. W. 640.

The instrument under consideration bears the title "Contract of Sale." That fact, however, is unimportant, if the body of the instrument indicates that the intention of the parties was to enter into some other sort of agreement. It will be observed that this contract shows J. L. Stoker was indebted to plaintiff in the sum of $2,581.90; that the consideration was not fixed, but was to be such price as plaintiff might receive from the sale of the cotton, less freight and other expenses.

Under the pleadings, the contract must be construed as executory. It is true that, at the time the contract was made, plaintiffs had assigned and delivered to them a duplicate bill of lading, but that fact did not amount to a symbolic delivery of the cotton as it would if the original bill of lading had been assigned or delivered to plaintiff by the person named therein as consignee, or by the lawful holder thereof. Moreover it is admitted that, at the time plaintiff obtained the duplicate bill of...