Russell Co. v. Spurgeon
| Decision Date | 08 January 1924 |
| Docket Number | No. 18305.,18305. |
| Parties | RUSSELL CO. v. SPURGEON et al. |
| Court | Missouri Court of Appeals |
Appeal from Circuit Court, Lewis County; James A. Cooley, Judge.
"Not to be officially published."
Action by the Russell Company against C. H. Spurgeon, Sr., and another, wherein defendants set up a counterclaim. From a judgment for plaintiff on its cause of action, and for defendants on their counterclaim, plaintiff appeals. Affirmed.
Hilbert & Henderson, of Monticello, and A. F. Haney, of Canton, for appellant.
Hilbert & Hilbert, of Canton, for respondents.
After reading the record, we are satisfied to accept appellant's statement of the case, which is in effect as follows:
This is a suit upon a promissory note. The petition asks judgment for the principal sum thereof, namely, $977.40, with 6 per cent. interest thereon front maturity. The answer of defendants admitted that they executed said note, and it sets up a special defense and a counterclaim, both alleging that the note was given for part of the purchase price of a separator and its fixtures, which was sold by plaintiff to defendants; the special defense set up being for failure of consideration ton of the note, based upon the claim that the machine failed to do good work, and was not properly equipped, and proved to be of little value. The counterclaim asks $1,000 damages for the loss of profits sustained by defendants by reason of the failure to deliver the machinery at the time specified in the order contract, and for the refund of certain freight charges which had been expended by defendants on behalf of plaintiff. The counterclaim alleges that under the terms of the order the machinery w"s to be shipped on or about June 1, 1919, and delivered to defendants at Canton, Mo., within a reasonable time thereafter, and in time for use by defendants in threshing season of 1919, and that they had contracted a large amount of threshing for the season of 1919, relying upon plaintiff to make delivery of said machinery as contracted and agreed; that said machinery was not shipped until July 22, 1919, and that, when delivery thereof was offered to defendants, it was found to be incomplete, and not as ordered and contracted for, and the threshing season for 1919 was well advanced, a large portion of the crops having been threshed, so that by reason of said delay in the delivery of said machinery a large potion of the crops contracted for by defendants was wholly lost to them; that defendants thereupon refused to accept or pay for said machinery, and demanded a return of the $190 already paid by them on the purchase price thereof, together with damages for plaintiff's failure to deliver the machinery as it had contracted and agreed to do; that thereupon plaintiff, through its agent sent to make delivery, represented to defendants and agreed that he would make delivery of the machinery to defendants upon defendants' paying $300 in cash, defendants to be given credit for the $190 theretofore paid by them, defendants to pay certain charges, including $109 freight on said machinery and other machinery shipped therewith, and defendants to execute and deliver to plaintiff their note in the sum of $977.40, due one year after date, and that plaintiff would thereafter pay to defendants the freight charges so advanced by them, except freight on one separator from Peoria, Ill., to Canton, Mo., and would make an adjustment with and pay defendants for the loss sustained by them by reason of said delay in delivering said machinery; that defendants, relying upon said representations and agreement, received said machinery, made said payments, advanced said freight charges, and executed and delivered said note; and that plaintiff has failed and refused to make said adjustment and to repay the freight charges so advanced, for which defendants claim they have been damaged in the sum of $1,000, for which they ask judgment.
Plaintiff filed a reply, denying the new matter contained in the answer. The reply specifically admits the giving of the order for the machinery, and that defendants paid $190 at the time of giving said order, and that under the terms of the order $1,330 was to be paid on the arrival of the machinery, and alleges that defendants refused to receive the machinery on its arrival until plaintiff first made an adjustment with defendants for their loss and damage, and that thereupon plaintiff agreed with defendants, as full compensation and adjustment for their loss and damage, to accept, in lieu of $1,330 cash on arrival of machinery as provided in the order, $352.60 in cash and a note of defendants for $977.40, due October 1, 1920, with interest from maturity, and that defendants in pursuance thereof paid the sum of $352.60 and executed said note, the same being the note herein sued on.
The machinery in controversy consisted of a 30×50 new Russell thresher, together with a feeder, weigher, and other equipment. This was contracted for in a written order signed by defendants, addressed to plaintiff. The order was dated May 19, 1919, and the order, among other things, provided that plaintiff was to ship said machinery to itself at Canton, Mo., for defendants, "on or about June 1, 1919, or as soon thereafter as possible." The machinery was shipped from Massillon to Canton, Mo., by freight, and arrived at Canton on July 22, 1919. Plaintiff sent its agent, C. F. Housh. Upon the arrival of the machinery at Canton, the defendants, with a number of their relatives, came down to the railway station where the machinery was ready to be delivered. Defendant C. H. Spurgeon, Sr., refused to receive it, on the ground that it was accompanied by a 28-inch Langdon feeder, instead of the 30-inch Boss feeder ordered, and also on account of the delay in shipping it.
Defendants themselves testified that defendant C. H. Spurgeon, Sr., also demanded $300 damages on account of the delay in delivery. Housh replied that he had no authority from the company to agree to a payment or allowance of damages, and that he had no right to vary from the terms of the written contract. The evidence is conflicting as to what was said in the discussion which on that occasion took place between C. H. Spurgeon, Sr., and Housh; also as to what Roush phoned to Mr. Race, the branch manager of the company at Peoria, Ill., and as to what Housh reported concerning what Mr. Race said. There are in fact as many versions of what was...
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