Rogers v. Rehard

• Citation: 97 S.W. 951,122 Mo. App. 44
• Parties: ROGERS et al. v. REHARD et al.
• Decision Date: 19 November 1906
• Court: Court of Appeal of Missouri (US)

97 S.W. 951

122 Mo. App. 44

ROGERS et al. v. REHARD et al.

Kansas City Court of Appeals. Missouri.

November 19, 1906.

Rehearing Denied December 3, 1906.

SALES — CONSTRUCTION OF CONTRACT — SUBJECT-MATTER — AMOUNT — DETERMINATION BY APPRAISERS.

A contract of sale of the total equipment of a telephone company at its market price provided for an "inventory to be made by two reputable, experienced telephone men," who should be selected in a certain manner, and that the "two men thus selected shall be the sole judges of all values." Held, that the appraisement, in the absence of fraud, was conclusive as to the amount of material, as well as the valuation; the stipulation as to values indicating merely that the valuation was to be based on the appraisers' expert knowledge.

Appeal from Circuit Court, Clay County; J. W. Alexander, Judge.

Action by Newton M. Rogers and another against A. L. Rehard and another. From a judgment in favor of plaintiffs, defendants appeal. Reversed.

John A. Cross and Sandusky & Sandusky, for appellants. W. S. Herdon, for respondents.

BROADDUS, P. J.

The plaintiffs' suit is to recover from the defendants the amount alleged to have been overpaid by them to defendant on the purchase price of a certain telephone plant. The contract of sale was evidenced by the following written contract: "Know all men by these presents, that we, A. L. Rehard and T. J. Campbell, owners of the Clover Leaf Telephone Company of Lathrop, Clinton county, Mo., parties of the first part, and N. M. Rogers and the Clinton County Mutual Telephone Company, parties of the second part, witnesseth: That the parties of the first part have this day sold to the parties of the second part the Clover Leaf Telephone Exchange, consisting of poles, cross-arms, wire, switchboard, phones, office fixtures, and all other equipments belonging to and in use by said exchange, upon the folowing terms and conditions, to wit: Parties of the second part agree to pay cost and carriage on above named plant and its equipment on the present market value on the day of the invoice, this inventory to be made by two reputable, experienced telephone men; these two men to be selected by P. M. Gilcrist, Willis Chowning, and H. C. Shepherd. Those two men, thus selected, shall be the sole judges of all values. Said parties of the second part further agree to pay to the parties of the first part the sum of $250; said sum to cover and be in full payment for the construction of said plant. Said parties of the second part agree to pay the sum of $1,000 for the business and good will of said telephone exchange. The inventory of said plant to be made not later than August 1, 1903, at which time said parties agree to pay spot cash in full for said plant, construction, and business and good will. The parties to this contract each agree to deposit the sum of $1,000 in the First National Bank; said sum to be forfeited in case either party to this contract fails to comply with the terms and conditions of this agreement." The three persons named, whose duty it was to select the two telephone men to make the invoice and fix values, selected Pascal Parker and James M. Deacy, who made their inventory and fixed the values on the property, and the respondents paid the full amount of the purchase price for all said property. But they claim that said Parker and Deacy made a mistake in their invoice of the amount of wire owned by defendants in said telephone exchange, and erroneously included in the said inventory by them 3,200 pounds of No. 12 wire, of the value of 5 cents per pound, aggregating the sum of $160, and 13,000 pounds of No. 14 wire, of the value of 5¼ cents per pound, amounting to the sum $692.50, and which values were carried into and constituted a part of the footings of the total amount of said inventory, and so paid by plaintiffs; "that as a matter of fact * * * the amount stated in said inventory was more than twice the amount of wire contained and owned * * * by defendant in said Clover Leaf Exchange and delivered by defendants to plaintiff." It is for this difference plaintiffs' claim is...