Roberts v. Kaemmerer

• Decision Date: 21 September 1926
• Parties: D. W. ROBERTS, RESPONDENT, v. TONY KAEMMERER, APPELLANT.
• Court: Missouri Court of Appeals

287 S.W. 1057

220 Mo.App. 582

D. W. ROBERTS, RESPONDENT, v. TONY KAEMMERER, APPELLANT.

Court of Appeals of Missouri, St. Louis

September 21, 1926

Appeal from the Circuit Court of the City of St. Louis.--Hon. Victor H. Falkenhainer, Judge.

AFFIRMED.

Judgment affirmed.

W. H Douglass for appellant.

(1) There was a valid and binding contract entered into between plaintiff and the defendant on October 11, 1923, whereby plaintiff purchased from the defendant and the defendant sold to plaintiff the floral shop on Easton Avenue because: (a) Plaintiff has sued for a breach of this contract and therefore, cannot deny its validity. (b) The plaintiff does not deny this contract, and the receipt offered in evidence by plaintiff shows that a contract was made on that date that was valid and binding between the parties and which entitled plaintiff to the possession of the floral shop upon the terms mentioned in contract. Vantress v. Trimbell, 214 Mo.App. 30; Cousins v. Bowling, 100 Mo.App. 452; Bass et al v. Walsh, 39 Mo. 192; State v. Swift & Co., 273 Mo. 462; Bank v. Smith, 107 Mo.App 178; 24 R. C. L. 18, sec. 279; Lainsden v. Howard, 210 Mo.App. 645; Sikes v. Freeman, 204 S.W. 948, and citations; Kuhler v. Tobin, 61 Mo.App. 576; Estis v. Hernden et al., 153 Mo.App. 381 and citations. (2) When the contract was made on October 11, 1923, between plantiff and defendant for the purchase by plaintiff from defendant of the floral shop on Easton Avenue, this was a valid and binding contract between the parties, and its validity was not effected by the provisions of the Bulk Sales Law. Kirby v. Balke, 306 Mo. 101; Newman v. Garfield, 5 A. L. R. 1507, and citations. (3) The Bulk Sales Law does not cover a floral shop such as mentioned in the evidence as it is not "a stock of merchandise" within the meaning of that law. Balter v. Miller & Krum, 199 Mo.App. 380; Bolanovich v. Tobacco Co., 261 S.W. 723; Breweries Co. v. Lawton, 200 Mo.App. 240; Co. v. Sweat, 25 L. R. A. (N. S.) 758. (4) The evidence shows defendant owned and conducted two floral shops at the time he sold the one on Easton Avenue to plaintiff, and he voluntarily offered to give plaintiff a list of the creditors on the Easton Avenue shop covered by the contract, and this was a compliance with the Bulk Sales Law. Rubenstein v. Bryson, 245 S.W. 585; Breweries Co. v. Lawton, 200 Mo.App. 240; Supply Co. v. Smith, 182 Mo.App. 212. (5) The court erred in taxing the costs of this case in the circuit court against the defendant as defendant was successful in his appeal, and the court also erred in overruling defendant's motion to retax the costs of this case in the circuit court because defendant was successful on his appeal.

Abbott, Fauntleroy, Cullen & Edwards for respondent.

(1) It was clearly the intention of the parties that the earnest money contract was a contract to sell and not a sale and the intention of the parties governs. 13 C. J. 521; Turner Looker Liquor Co. v. Hindman, 232 S.W. 1076. (2) "Where the parties to a contract have given it a practical construction by their conduct, as by acts in partial performance, such construction is entitled to great, if not controlling, weight in determining its proper interpretation." 13 C. J. 546. (3) "If the contract is silent on the question of delivery and time of payment of the purchase price, it is universally held that payment of the purchase price and delivery of the goods are to be simultaneous, and title does not pass until payment is made." Broughton v. Hunter's Bank, 264 S.W. 469. (4) This was a contract to sell one of two retail floral stores in St. Louis owned by defendant. The Bulk Sales Law applies to retail merchants, traders and dealers. 27 C. J. 878; Gallup v. Rhodes, 230 S.W. 664. (5) Defendant had two retail floral stores in St. Louis. He contracted to sell the Easton Avenue store to plaintiff. He declined to state the names of those who had extended credit for merchandise, etc., to the other store. This was a breach of the right which plaintiff had to require defendant to comply with the Bulk Sales Law. "The term 'creditors' as descriptive of the persons in whose favor the statute declares bulk sales fraudulent and void is usually not restricted to any particular class of creditors, but includes all persons who were creditors of the seller at the time of the sale, although their claims had not been reduced to judgment or were not due, and although they were not creditors for merchandise, but were merely general creditors of the seller in other transactions." 27 C. J. 879; Supply Co. v. Smith, 182 Mo.App. 212; Phillips v. Verbeke, 200 P. 1091; Gardner v. Goodner Wholesale Gro. Co., 247 S.W. 291; George H. West Shoe Co. v. Lemish, 124 A. 87; Burnett v. Trimmell, L. R. A. 1918, E. 1058; Prins v. American Trust Co., 275 S.W. 914; Anderson v. Merchants' and Miners' State Bank, 129 S.E. 650. (6) Under the earnest-money receipt defendant was not entitled to a mortgage securing deferred payments. His insistence upon said mortgage was a violation of the contract.

SUTTON, C. Daues, P. J., and Becker and Nipper, JJ., concur.

OPINION

SUTTON, C.--

This is an action to recover $ 500 damages for breach of contract. The action was commenced in a justice court in the city of St. Louis. From the justice court the case went to the circuit court on appeal. Upon a trial anew in the circuit court, without a jury, judgment was given in favor of plaintiff for $ 100, and the defendant appeals.

There is no controversy about the facts.

On October 11, 1923, plaintiff and defendant entered into a contract for the sale by defendant to plaintiff of a stock of merchandise, fixtures, and equipment, and pursuant thereto plaintiff paid defendant $ 100 on the purchase price, and the defendant executed and delivered to plaintiff the following instrument:

"St. Louis, Mo., October 11, 1923.

"Received from Mr. D. W. Roberts ($ 100) one hundred dollars as earnest money on purchase of my Florist Store at 5945 Easton Avenue, which is to apply as first part of principal of purchase price of ($ 2250) two thousand two hundred and fifty dollars, which by mutual arrangement is part of ($ 1125) eleven hundred and twenty five dollars, which is to be paid within (30) thirty days from date; balance of ($ 1125) eleven hundred and twenty-five dollars to be paid in monthly installments of ($ 100) one hundred dollars per month, first payment to begin January 2, 1924. The purchase price of $ 2250 is for all equipment, stock and fixtures contained in said store.

"T. KAEMMERER."

It was agreed between the parties that the defendant should remain in possession of the property, selling the stock from day to day in the course of his business as a merchant, and that when they came to close the deal thirty days after October 11th, defendant would turn over the possession and see that the stock was then equivalent in value to what it was on October 11th. Defendant had a similar stock of merchandise at a store on Kingshighway. After October 11th he remained in possession of the Easton Avenue store, selling the stock in the course of his business as a merchant pursuant to agreement. There was nothing said by either of the parties about compliance with the Bulk Sales Statute until November 6, 1923. On that day the plaintiff informed the defendant that he was ready to make the further payment of $ 1025 and to otherwise comply with his contract, and requested of defendant a list of his creditors. The defendant announced that he was willing to give, and would give, a list of the creditors of the Easton Avenue store, but refused to give a list of the creditors of the Kingshighway store. Plaintiff insisted upon having a list of the creditors of both places of business. Defendant also refused to close the deal and deliver the property unless the plaintiff would give him a chattel mortgage on the fixtures and equipment to secure the deferred payments. A further conference was had between the parties on November 10th, when the defendant again refused to give the plaintiff a list of the creditors of the Kingshighway store or to close the deal and deliver the property unless the plaintiff would give security for the deferred payments, but again expressed his willingness to give a list of the creditors of the Easton Avenue store. Plaintiff declined to accept these terms, and defendant refused to go on with the deal. Thereupon this suit was brought.

The defendant says that the purpose of the Bulk Sales Statute is to protect the creditors alone who sell to merchants for resale, and argues from this premise that the statute does not protect the creditors who sold goods to the defendant for resale at his store or place of business on Kingshighway, but protects only the creditors who sold goods to the defendant for resale at his store or place of business on Easton Avenue where the stock of merchandise sold to the plaintiff was situated. Bulk sales statutes similar to ours have been enacted in many of the other states. The universal construction placed upon these statutes by the courts is that they protect all persons who were creditors of the seller at the time of the sale, though they were not creditors for merchandise but were merely general creditors of the seller in other transactions. [Phillips v. Verbeke (Wash.), 200 P. 1091; Gardner v. Goodner Wholesale Grocery Co. (Tex. Civ. App.), 247 S.W. 291; Eklund v Hopkins, 36 Wash. 179; Geo. H. West Shoe Co. v. Lemish (Pa.), 124 A. 87; Burnett v. Trimmell, 103 Kan. 130; Fidelity & Deposit Co. of Maryland v. Thomas, 133 Md. 270, l. c. 273; Johnston Bros. Co. v. Washburn, 16 Ala.App. 311; Prins v. American Trust Co. (Ark.), 275 S.W. 914; Anderson v. Merchants' & Miners' State Bank (Ga.), 129 S.E. 650; McKinster v. Sager, 163 Ind....