Sinclair Refining Co. v. Nat. L. McGuire Oil & Supply Co.

• Decision Date: 04 May 1920
• Docket Number: No. 15785.,15785.
• Citation: 221 S.W. 378
• Court: Missouri Court of Appeals
• Parties: SINCLAIR REFINING CO. v. NAT. L. McGUIRE OIL & SUPPLY CO.

221 S.W. 378

SINCLAIR REFINING CO. v. NAT. L. McGUIRE OIL & SUPPLY CO.

No. 15785.

St. Louis Court of Appeals. Missouri.

Argued and Submitted April 15, 1920.

Opinion Filed May 4, 1920.

Rehearing Denied May 21, 1920.

Appeal from St. Louis Circuit Court; Victor H. Falkenhainer, Judge.

"Not to be officially published."

Action by the Sinclair Refining Company against the Nat. L. McGuire Oil & Supply Company. Judgment for plaintiff for portion of demand and for defendant on counterclaims in excess of amount of plaintiff's claim, and plaintiff appeals. Reversed and remanded for further proceedings.

Wilson & Trueblood, of St. Louis, for appellant:

Henry W. Blodgett, Walter N. Fisher, and Walter N. Davis, all of St. Louis, for respondent

REYNOLDS, P. J.

This is an action to recover $862.33 and Interest, from February 1, 1914, the $862.33 being, as it is averred, the agreed price for the articles, and it being also averred that that was the reasonable value. The articles are,

                2764 gallons lubricating oil at 4 1/8¢................. $114 02
                5543 gallons of what is called zero oil at 13½¢.....  748 31
                                                                        _______
                   Amounting to .....................................   $862 33
                

The oil was shipped December 1, 1913, the goods bought on sixty-days terms, making the amount fall due and payable February 1, 1914, the goods having been invoiced November 30th.

The answer of the defendant admitted the receipt of 2764 gallons of oil, for which it Owed $114.02 that had not been paid, but denied liability for the 5543 gallons bought and shipped as zero oil, on the ground that it was not zero oil, that is oil that would not freeze at zero Fahrenheit. By way of counterclaim defendant sets up that the so-called zero oil did not remain normally liquid at zero degrees Fahrenheit but became hard and solid and worthless at a temperature of 10 to 20 degrees above zero Fahrenheit; that it is below the quality usually sold by plaintiff under the trade designation of No. 2200 zero oil, and is not saleable or merchantable. Averring that within a reasonable time after discovering the facts about the oil, it notified plaintiff and rescinded the contract and agreement of purchase and sale and tendered the oil to plaintiff and offered to pay the reasonable value of the small amount of oil it had used, defendant demanded that plaintiff take back the oil, which plaintiff had refused to do and still so refuses.

By a third count of the counterclaim defendant avers that since the time of its reception it had been compelled to store the oil at an expense of $300, for which it asks judgment.

The fourth count, with the same averments, demands judgment for $128.12, for freight, drayage, etc., paid; and the fifth count demands $50 for labor in moving the oil from one storehouse to another by defendant.

The sixth count is for general damages in the sum of $2,500, for failure to deliver the zero oil.

There was a reply to this counterclaim, and on a trial before the court and jury, while there was a verdict in favor of plaintiff for $114.02, with interest, amounting to a total of $137.37, there was a verdict for defendant on its counterclaim for $300 on the third counterclaim; $151.02 on the fourth, and $57.95 on the fifth. Judgment was apparently entered for the defendant for the difference, $371.60. The sixth counterclaim seems to have been abandoned.

On a motion for new trial the court announced that he would sustain it unless defendant would remit $89.65, which defendant did, leaving the judgment for $261.95 in favor of defendant. From this plaintiff duly appealed.

It appears that this oil was shipped in a tank car, divided into 3 compartments, the common oil in one, the zero oil in two. It was unloaded about December 1st, when it arrived at St. Louis and the oil transported to the premises of defendant, where it was put in tanks. It appears by the testimony of a Mr. Black, who at the time was sales manager for plaintiff company, that he received the order about October 27th, the order calling for one No. 2100 (that being the common oil), and zero oil, numbered 2200. This order was sent to plaintiff's refinery for shipment and was shipped from Coffeyville, Kansas, where the refinery was located. As far as this witness knew, plaintiff had heard nothing from defendant about it prior to about February 14, 1914, when Black called on defendant. The goods were sold upon the terms of a 2 per cent. discount in 10 days, or 60 days net; that is the invoice was at 60 days and payment became due approximately the first of February. On February 7th, plaintiff wrote to defendant, that it was without remittance to cover this invoice for $862.33 worth of goods shipped on 60 days terms. Again, on February 11th, plaintiff wrote to defendant, saying that it had received no response to its letter of the 7th, and had not drawn a draft on defendant as plaintiff was under the impression that defendant desired to remit, but if defendant preferred to have a draft drawn on maturity of invoice, plaintiff would do so. Defendant does not appear to have answered either letter. Witness Black testified that up to February, when he called on defendant, no complaint about the oil delivered to defendant had been received. Shown the invoice, the witness stated that according to that, one compartment contained 2200 zero oil, another 2200 zero oil, and another 2100 or ordinary lubricating oil. Plaintiff had inclosed to defendant, on December 1, 1913, a bill of lading covering the shipment. Witness further testified that in the latter part of February or first of March, 1914, he called at defendant's place of business and talked about taking a sample of the oil and having it analyzed and tested, defendant complaining that the oil shipped as zero oil was not of that quality. That was the first time witness had heard about any complaint of the quality of the oil. It seems that this witness took a quart sample of the zero oil with him, or had it sent to the headquarters of the company plaintiff, and on February 16, 1914, plaintiff acknowledged receipt of the sample of zero oil and wrote that it would subject it to severe test and advise defendant of the physical properties of the oil, "after which," said the letter, "we will adjust to mutual satisfaction." On March 3, 1914, plaintiff wrote defendant:

"With further reference to zero cold test oil shipped you, sample of which you submitted to us, we regret to advise that same only stands 20 cold test, and if you think 2 cents per gallon is reasonable allowance we will be pleased to settle on this basis."

It does not appear that defendant answered this letter, and on March 12th, plaintiff wrote to defendant, referring to the shipment of November 30th, that it was advised by Mr. Black that one compartment of the car was unsatisfactory, and that an adjustment would have to be made, and the letter continued:

"As the item is considerably past due, will you not remit for that portion of the car not affected by your claim?"

Identifying these letters, witness Black testified that the sample of oil which he got from defendant was turned over by him to the testing department. It then went to the laboratory and the test was made and after it had been analyzed by plaintiff's chemist, plaintiff wrote the letter of March 3rd, above noted, based on the information of its chemist.

Another witness for plaintiff, a Mr. Childs, testified that he was connected with the plaintiff company and had shipped the car of oil, producing the original shipping record; that this car was shipped on November 30th, the zero oil being put in two compartments and the other oil in another; that no complaint had been received by witness at Coffeyville, Kansas, where he was engaged in the employ of plaintiff; that he had been in the oil business a number of years and when he shipped the oil it looked like the kind ordered. Witness testified that the reasonable value of the oil was as charged in the bill, and that it would not take more than an hour to examine the oil and determine whether or not it was zero oil. This was plaintiff's case in chief.

McGuire, the president and a witness in behalf of defendant company, testified that when this oil arrived at St. Louis, a cooperage company employed by defendant barreled it on the levee, under direction of defendant's superintendent, hauled it to defendant's warehouse, where it was put in tanks, and in the course of time defendant found that the oil did not stand the required test; that after it had been placed in tanks in defendant's storeroom he had it moved to another storeroom ; that the first test he made to satisfy himself was to set a pail of the oil out of doors and then, finally, a larger vessel, and he found that the oil bought as zero oil congealed along about 60 degrees above zero; that Mr. Black had come to defendant's place of business sometime after the first of February, and he discussed this oil with Black; showed him a sample of it and Black told him that the oil was not the oil defendant was to get and that plaintiff had evidently sent the wrong oil. He agreed to send Black a sample of the oil, which he did; that Black saw the oil and it was after he examined it that he (Black) said it was not zero oil. He had received the letters referred to after he had sent Black the sample of oil, and the only communication with the plaintiff company, with reference to taking the oil back, was through letters; that he (witness) had told Black that the oil was wrong and would not stand the test, and Black agreed that it was not right. This witness testified to the amount he had paid for moving the oil from one of his places of business to another, as to the cost of drayage and freight paid by his company, and what he had paid the cooperage company, the concern that had unloaded the oil. On cross-examination, the witness testified that he had known of the failure...