Robertson Canning Co. v. Davis

• Decision Date: 30 March 1929
• Docket Number: No. 4461.,4461.
• Citation: 15 S.W.2d 882
• Parties: ROBERTSON CANNING CO. v. DAVIS.
• Court: Missouri Court of Appeals

15 S.W.2d 882

ROBERTSON CANNING CO. v. DAVIS.

No. 4461.

Springfield Court of Appeals. Missouri.

March 30, 1929.

Appeal from Circuit Court, Butler County; Charles L. Ferguson, Judge.

Action by the Robertson Canning Company against W. E. Davis. Judgment for defendant, and plaintiff appeals. Affirmed.

Cope & Tedrick, of Poplar Bluff, for appellant.

Abington, Abington & Freer, of Poplar Bluff, for respondent.

BAILEY, J.

Plaintiff sued in replevin for possession of 1,192 cases of canned tomatoes. Having given bond, plaintiff obtained possession under the replevin writ. The cause was tried to a jury, and resulted in a verdict and judgment for defendant in the sum of $1,881.90. Plaintiff appeals.

The evidence shows that plaintiff's claim of title is based on a bill of sale to the tomatoes in question from the Case Canning Company, a copartnership, dated February 21, 1927. The Case Canning Company also did business under the name of the Consolidated Canning Company, and both will hereinafter be referred to as the canning company.

It appears that in February, 1925, a written contract was entered into by and between defendant and the so-called Consolidated Canning Company by the terms of which the canning company sold to defendant certain equipment and machinery for a canning factory for which defendant agreed to pay $450. As a further consideration, the canning company agreed to pay defendant 55 cents per case of 24 cans of tomatoes, on delivery to the canning company at Naylor, Mo.; and, on sale of tomatoes by the canning company, to give him, in addition to the 55 cents per case, one-half the average net receipts, over and above $1.30 per case, received by said canning company, but deducting certain items for rent, insurance, and freight on closing machine, and also deducting balance due on canning outfit. The contract was renewable from year to year, and was negotiated and signed by H. O. Miller representing the Consolidated Canning Company. It seems this plant was to be located at Naylor, Mo. Afterwards parole agreements were entered into between the same parties, by the terms of which the canning company agreed to furnish machinery and equipment for other canning plants, to be owned and operated by defendant at Harviell and Neelyville, Mo., and Corning, Ark. The terms of these parole contracts were the same as in the written contract heretofore referred to. The plants were installed, and defendant proceeded to can tomatoes during the years 1925 and 1926, and deliveries of canned tomatoes were made, according to plaintiff's testimony, to H. O. Miller, representing the canning company, to the amount of 26,825 cases (not including the 1192 cases in question), for which plaintiff received in cash $14,300, leaving a balance due of $453.75. The total amount received by defendant from the canning company in cash, advancements, rent, and indebtedness was admitted by him to be $17,800. Without entering into the rather muddled calculations on the various items involved, it seems that, if the written contract is to govern these transactions, defendant was paid for all the tomatoes at the rate of 55 cents per case and for all the excess profit due under the contracts, except on about 11,000 cases plaintiff claims were never sold, leaving only a small balance due defendant. However, defendant testified, over plaintiff's objection, that the original contract was modified by a later agreement between defendant and H. O. Miller, representing the canning company. This agreement was made after a disagreement between defendant and Miller as to the number of cases for which the canning company owed defendant. Defendant's testimony on that point was as follows:

"There were 27,126 cases of tomatoes according to his figures. I did not accept that as being correct, but I agreed to accept this 16 cents per case profit he offered me in settlement. He paid me $14,300 on this 55 cents a case that was due me when the tomatoes were delivered. He paid me that much. He had the items charged that you have heard enumerated, fertilizer, crates, etc. Then there was the promotion money. All this amounted to $16,200.28. My part of the profit at 16 cents a case on that amount would be $4,340.16. They owed me a hauling bill of $161.00. He had used two of my buildings for warehouses, and they had broken down and he agreed to pay me $200.00 damage on them. I owed them $1,600.00 for four factories. Taking all these items into account, they owe me $1,820.46. Here is the statement:

                By 55 cents a case on 27,126 cases     $14,919 30
                By 16 cents a case profit on same        4,340 16
                By hauling bill due me...........          161 00
                By damage to two buildings.......          200 00
                To seeds, plants, crates, fertilizer
                  etc. ..........................                    $16,200 00
                To four factories................                      1,600 00
                To balance due me................                      1,820 46
                                                       __________    __________
                                                       $19,620 46    $19,620 46
                

"That leaves them owing me $1,820.46 which is still due me. I refused to deliver any part of this 1,192 cases of tomatoes until this payment was made. It was never paid. They owe more than that but we agreed on that amount and I agreed to accept it if they would go ahead and settle that way."

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