Sigerson v. Harker

• Decision Date: 31 October 1851
• Parties: SIGERSON v. HARKER.
• Court: Missouri Supreme Court

15 Mo. 101

SIGERSON

v.HARKER.

Supreme Court of Missouri.

October Term, 1851.

APPEAL FROM ST. LOUIS COURT OF COMMON PLEAS.

Sigerson sued Harker, under the new Code, on the 14th January, 1850. The petition states, that defendant owes plaintiff $164, under the following agreement, to-wit: The plaintiff sold to said defendant a certain quantity of lard, for which defendant was to deliver to plaintiff about 700 pork barrels; a portion of which was on the wharf at St. Louis, and another portion was represented to be of the same quality as those on said wharf, and were in store, and the balance in cash. For the pork barrels in store, defendant gave plaintiff a written order which order is now in the hands of Shidy & Loomis, on whom the same was drawn. Plaintiff states, that 164 barrels, for which he received defendant's order, were not such barrels as they were represented to be by defendant, but wholly inferior in quality and entirely unfit to be used for packing pork, for which purpose they were sold. Plaintiff further states, that said barrels were not ready for delivery when said order of defendant was presented, and that such barrels, as plaintiff was entitled to under his agreement with said defendant, were worth one dollar per barrel; of all which defendant had notice. Plaintiff asked for judgment for $164, it being the balance due him together with interest.

Defendant, in his answer, denies that he owes plaintiff $164 or any other sum; denies that he warranted said barrels, or made any representation about them, amounting to a warranty, but that plaintiff took them on his own judgment, after inspecting them, and at his own risk. He admits giving the order on Shidy & Loomis, but says that plaintiff never returned said order to him nor offered to do so, nor did plaintiff return or offer to return said barrels, or give defendant notice of any defect in them, till some time after the giving of said order; which conduct of plaintiff, defendant maintains, wholly deprives plaintiff of all claim on defendant, if he ever had any.

On the trial, plaintiff offered the deposition of William S. Hungerford, who acted as agent for plaintiff in the purchase of the barrels. Defendant objected to so much of this deposition as purports to state a contract between plaintiff and defendant, and a warranty of the barrels sold, on the ground that the sale bill or receipt, which was attached as an exhibit to said deposition, was a written contract about the subject matter between the parties, and excluded all evidence of a verbal contract or warranty. The following was the writing referred to:

“ST. LOUIS, December 31st, 1849.

MR. JOHN SIGERSON,

Bought of J. W. HARKER:

To 836 pork bbls., at $1

$836 00

Drayage of 105 bbls

1 55--$837 55

Received payment,

JOHN W. HARKER.”

The objection was overruled by the court and defendant excepted. The deposition was then read. Plaintiff's proof tended to show that John G. Law & Co. sold through Hungerford, the agent of plaintiff, one hundred tierces of lard to defendant, which was paid for by defendant, partly in 836 pork barrels and balance in cash; that plaintiff took the barrels on the levee and made no objection to them; that there were 214 bbls in store with Shidy & Loomis for which defendant gave plaintiff the following order, to-wit:

“ST. LOUIS, January 2nd, 1850.

Messrs. Shidy & Loomis will please deliver Mr. J. Sigerson the 214 pork barrels I have in your warehouse, and much oblige

J. W. HARKER.”

That these barrels were old ones that had laid over one season; that defendant said that those in store were as good as those on the levee, which were new barrels; that plaintiff took a portion of the barrels at Shidy & Loomis'; that some were used and some sent back, as they would not hold brine, and that plaintiff refused to take any more; that plaintiff notified defendant that they would not answer, as soon as it was discovered; that about a week after the sale of the barrels, plaintiff called for them and they were not ready, as they needed coopering; that if any of the hoops were off the barrels they were to be put on; that they were bought at $1 per barrel; that the rejected barrels were 164, and were worth nothing for plaintiff's purpose; that they were worth from twenty to forty cents, as dry barrels; that it was about a week after the sale that defendant was notified; that the defendant's order to plaintiff on Shidy & Loomis was never returned to defendant, but delivered to Shidy & Loomis, who retained it and had possession of it at the time of trial; that plaintiff returned to Shidy & Loomis some barrels he had never taken from them; that those returned were in bad condition, with the heads of many knocked out, and the hoops off; that neither plaintiff nor defendant would take them, and it was not known what had become of them.

Plaintiff offered in evidence the sale bill, attached to Hungerford's deposition, to which defendant objected, on the ground that it was a contract in writing between the parties, and was not declared on. The court permitted it to be read, to which defendant excepted. Plaintiff then closed his case, and the defendant asked the following instruction which the court refused, to which defendant excepted, viz: 1. The written bill of sale or billand receipt for the barrels, exhibited to the jury, is the only legal evidence of the contract of sale of the barrels between plaintiff and defendant, and plaintiff not having declared on that written contract, cannot recover in this action. 2. The surrender so Shidy & Loomis of defendant's order on them for the barrels in their hands, constituted a delivery to plaintiff of the barrels called for by the order; and after such delivery, plaintiff could not, without the consent of defendant, return the barrels and sue for the price, even if they were inferior in quality to those bargained for; his only remedy in such case would be a suit for damages, on the alleged breach of warranty, but as plaintiff has not sued for damages, but for the contract price, he cannot recover in this action. 3. If the jury find for the plaintiff, in the matter of the barrels; they will assess, as damages, the difference between the actual value of the inferior barrels, if any, and the market value that the barrels would have possessed if they had conformed to the warranty.

The court refused these instructions, and the defendant excepted. The court gave the following on its own motion: 4. If the jury believe from the evidence, that the plaintiff bought the barrels in question, by sample, or on the faith of defendant's representations, and the barrels were not such as represented, or of the same kind or quality as the sample, the plaintiff is entitled to recover the difference between the actual value of the barrels he kept and the price he paid for them, as to such as did not agree with the sample or representations; and for the barrels returned in a damaged condition, the difference between their actual value, when received by the plaintiff, and the price paid for them. The defendant excepted. The jury found for plaintiff $164. Defendant moved for a new trial; the court overruled the motion; defendant excepted and appealed to this court.

GRAY, for Appellant. The sale bill, signed by defendant, was the contract of sale between the parties, reduced to writing. 9 Vt. R. 285; 5 Har. & Johns. 117; 6 Har. & Johns. 249; 4 Taunt. 779; 9 Metc. 83; 23 Pick. 256; 18 Pick. 47; 3 Wend. 459; 4 Conn. R. 430. This sale bill contained every essential of the contract. Code, art. 7, § 13. If, however, said sale bill was not such an...