Roth v. The Continental Wire Company

• Decision Date: 29 April 1902
• Parties: CHARLES A. ROTH, Respondent, v. THE CONTINENTAL WIRE COMPANY, Appellant
• Court: Missouri Court of Appeals

68 S.W. 594

94 Mo.App. 236

CHARLES A. ROTH, Respondent, v. THE CONTINENTAL WIRE COMPANY, Appellant

Court of Appeals of Missouri, St. Louis

April 29, 1902

Appeal from St. Louis City Circuit Court.--Hon. Franklin Ferris Judge.

REVERSED AND REMANDED (with directions).

Reversed and remanded.

Gilliam & Smith for appellant.

(1) The referee erred in excluding evidence offered to show that Charles A. Roth paid nothing for the assignments of claims sued on, and was not the real party in interest, and the court erred in adopting his rulings. Nanson v Jacob, 93 Mo. 331; Williams v. Whitlock, 14 Mo 553; R. S. 1889, sec. 1990; R. S. 1899, sec. 540; Wonderly v. Lafayette Co., 150 Mo. 635; Roberts v. Abner, 42 S.W. 337; Perry v. Liter, 37 Mo. 274; Bidwell v. Dock Co., 40 Mo. 42; Bigler v. Flickinger, 55 Pa. St. 284; Kollock v. Gunnert, 43 Mo.App. 566; Musser v. Adler, 86 Mo. 445; Thomas v. Ramsey, 47 Mo.App. 84; Hoffman v. Parry, 23 Mo.App. 20; Bond v. Long, 87 Mo. 266; Plano Mfg. Co. v. Cunningham, 73 Mo.App. 376; Kelly v. Thuey, 143 Mo. 422; R. S. 1899, sec. 746; R. S. 1889, sec. 2186; Young v. Glasscock, 79 Mo. 577; Greenway v. James, 34 Mo. 328; Northrup v. Ins. Co., 47 Mo. 44. (2) The referee's findings were against the weight of the evidence, and the court erred in sustaining his findings, and this being a compulsory reference, and involving the examination of a long account on the plaintiff's part, and a great many counterclaims on defendant's part, the court will examine and weigh the evidence and determine its own conclusions, and if the referee found against the weight of the evidence this court will make the correction. State ex rel. v. Hurlstone, 92 Mo. 327; Wentzville Tobacco Co. v. Walker, 123 Mo. 671; Small v. Hatch, 151 Mo. 306; Williams v. Railway, 153 Mo. 495. (3) If defendants were at all liable for any alleged interferences by Henry Fuchs (a charge and an interference in no way conceded), the action by Fuchs, if any, made a nudum pactum; there was no consideration for any change; no such changes were pleaded; no waivers were pleaded; but plaintiff claimed performance pure and simple, and could not recover on any other ground. Larsen v. Railway, 110 Mo. 253; Waldheir v. Railroad, 71 Mo. 514; Reed v. Bott, 100 Mo. 62; Nichols v. Larkin, 79 Mo. 264.

Ed. L. Gottschalk for respondent.

(1) The assignments being in writing, plaintiff was the real party in interest and could sue in his own name. Guerney v. Moore, 131 Mo. 668; State (ex rel.) v. Shelby, 75 Mo. 485; Simmons v. Belt, 35 Mo. 461; Doering v. Kenamore, 86 Mo. 588; Long v. Heinrich, 46 Mo. 603; Walker v. Mauro, 18 Mo. 564; Amer. Smelt. Co. v. Fire Assur. Co., 71 Mo.App. 661. (2) It is no defense that the payee and holder of a note is trustee for a third party. Nicolay v. Fritschle, 40 Mo. 67. If a cause of action is assigned (to pay over proceeds to assignor), the assignee is a trustee of express trust and must sue in his own name. Dean v. Chandler, 44 Mo.App. 338. (3) The machines being ready for delivery and plaintiff being requested to retain them until further order, was a constructive delivery and not a waiver. Tiedeman on Sales, sec. 104. (4) If the parties have not selected or designated a place for delivery of the goods in the performance of a contract of sale, the goods must be held ready for delivery at the place where they were at the time of sale. Tiedeman on Sales, sec. 96; Kraft v. Hurtz, 11 Mo. 109. (5) The referee's findings are, in an action at law, conclusive as to the facts. Lingenfelder v. Wainwright Bry. Co., 103 Mo. 578. (6) They are to be treated on appeal as a special verdict, and will not be disturbed if there is any evidence to establish the facts found. Howard Co. v. Baker, 119 Mo. 397; Berthold v. O'Hara, 121 Mo. 88; Darling v. Potts, 118 Mo. 506.

BLAND, P. J. Barclay, and Goode, JJ., concur.

OPINION

BLAND, P. J.

--On September 1, 1896, the B. Roth Tool Company, a corporation doing business in the city of St. Louis, and the Continental Wire Company, a corporation doing business in Granite City, in the State of Illinois, entered into the following contract:

"St. Louis, Mo., Sept. 1, 1896.

"For and in consideration of the sum of fifty dollars, to it in hand paid, the receipt of which is hereby acknowledged and the further consideration of the agreements hereinafter stated, the B. Roth Tool Company hereby sells to the Continental Wire Company the option to purchase twenty-five wire-nail machines designated as follows: Two A machines, three B machines, nine C machines, nine D machines, one E machine, one F machine, of the kind and as described in the catalogue of the P. & B. Nail Machine Company, of St. Louis, a copy of which catalogue containing said description is hereto attached, and referred to as a part of this contract so far as said description is concerned, at and for the price of nine thousand, two hundred and fifty dollars, to be paid as hereinafter stated; all of said machines so sold by said B. Roth Tool Company to be double-headed, and to have all the improvements designed by Henry Fuchs, the said B. Roth Tool Company being the owner in its own right of the said P. & B. wire-nail machines, and also of the improvements aforesaid. The said Continental Wire Company is to close this option on or before the eighth day of September, 1896, and notify the B. Roth Tool Company, in writing, to deliver said machines. Upon receipt of said notice the said B. Roth Tool Company shall deliver three of said machines to said Continental Wire Company and shall not receive pay therefor until the whole of said twenty-five machines are delivered. That including the said three machines the said B. Roth Tool Company shall deliver eight machines within two weeks from the date of said notice to close this option and the Continental Wire Company shall pay for the same as delivered. That said B. Roth Tool Company shall deliver within six weeks from the date of notice, the remaining seventeen of said machines, and shall receive the said sum of nine thousand, two hundred and fifty dollars for all of said twenty-five machines, but in the event the said B. Roth Tool Company shall fail to deliver said machines within six weeks, then they shall only receive in all the sum of eight thousand, five hundred dollars.

"In consideration of the premises and the mutual agreements of the parties, the B. Roth Tool Company agrees to sell and deliver seventy-five additional machines on the order and at the option of the Continental Wire Company, and of the kinds they may order within one year after the delivery of the last of the twenty-five machines first herein mentioned, for which said Continental Wire Company is to pay at the same rates proportionately as is herein agreed to be paid by them for the said first twenty-five machines upon the delivery thereof.

"In consideration of the premises and of the agreements herein, and in consideration that the B. Roth Tool Company will not sell to any person, corporation or company, except the Continental Wire Company, any of said machines, the said last-named company will pay to said B. Roth Tool Company the sum of one cent a keg for each and every keg of nails manufactured by said machines during the option of said Continental Wire Company; it being understood that if said Continental Wire Company shall fail to pay said royalty of one cent a keg by the tenth of each month for the nails manufactured in the preceding month, then said B. Roth Tool Company may sell machines to anyone who may wish to buy.

"It is further understood that if any patents are granted by the United States on said machine or improvements, that the said Continental Wire Company shall have the exclusive right to use said machines in the United States under said patents so long as it shall pay said royalty of one cent a keg for all nails manufactured by said machines as hereinbefore stated.

"It is further understood that the B. Roth Tool Company guarantees that neither said P. & B. nail machines nor said improvements by Henry Fuchs infringe on any patents held by others, and that the said Continental Wire Company shall have the exclusive use of all patents that said B. Roth Tool Company has or may have under this agreement, or that may be hereafter taken out by said H. Fuchs; and said B. Roth Tool Company guarantees that all of said machines shall be perfect in all their parts and will do the work for which they are intended, to the satisfaction of the said Continental Wire Company.

"It is further agreed that in the event the said B. Roth Tool Company shall fail to carry out this contract if the same is demanded by the Continental Wire Company, then it shall pay to the said Continental Wire Company the sum of five thousand dollars as liquidated and ascertained damages and not as a penalty, but this shall not apply to the failure to deliver the machines within the time limited herein if the same are delivered within a reasonable time thereafter.

"In witness whereof the said B. Roth Tool Company has caused this contract to be signed by its president, William Boefer, and attested by its secretary, Edward B. Roth, under the seal of said company, and the said Continental Wire Company has caused this contract to be signed by its president, D. R. Wolfe, and attested by its secretary, William E. Ware, under the seal of said company on the 1st day of September, 1896."

On September 7, 1896, the parties made the following supplementary agreement:

"For and in consideration of the sum of twenty-five dollars, this day paid to the B. Roth Tool Company by the Continental Wire Company, the receipt of which is hereby acknowledged, the option sold to the Continental Wire Company by the B. Roth Tool Company, September 1, 1896, is hereby extended to the...