Sotham v. Weber
| Decision Date | 05 February 1906 |
| Citation | 92 S.W. 181,116 Mo.App. 104 |
| Parties | T. F. B. SOTHAM, Respondent, v. ANTON WEBER, Appellant |
| Court | Kansas Court of Appeals |
Appeal from Jackson Circuit Court.--Hon. Shannon C. Douglass, Judge.
REVERSED.
Judgment reversed.
G. B Silverman for appellant.
(1) The verdict is against the evidence and was manifestly for the wrong party. 1 Tiedeman on Sales, sec. 56. (2) The Statute of Fraud: page 856, chapter 31, R. S. 1899, sec. 3419; Wood on Statute of Frauds, (1 Ed.), p. 634, note 2, pp. 635-638; Tiedeman on Sales, sec. 69, page 83; Story on Sales, sec 278; Harvey v. Butcher's Association, 39 Mo 217; Kirby v. Johnson, 22 Mo. 354; Gro. Co. v. Lamar, 42 S.E. 366; Cardet v. Belknap et al., 1 Cal. 399; Bentall v. Burn, 3 Barn & Gres. 423; Bailey v. Ogden, 3 Johns. 399. (3) The court erred in overruling the demurrer to the evidence offered by the defendant at the close of the plaintiff's case; Powel v. Railroad, 76 Mo. 84, 85; Haven v. Railroad, 155 Mo. 230; Kirby v. Johnson, 22 Mo. 361; Harvey v. Butchers' Association, 39 Mo. 218; Wood on the Statute of Frauds, p. 638.
Ward, Hadley & Neel for respondent.
(1) There was an acceptance and receipt of "Old Times" in Kansas City by Weber, on or about October 18, 1900. Garfield v. Paris, 96 U.S. 563; Kirby v. Johnson, 22 Mo. 360; Bass et al. v. Walsh, 39 Mo. 192; Swofford v. Spratt, 93 Mo.App. 630; Janvrin v. Maxwell, 23 Wis. 51, (2) Sotham held "Old Times" after he was accepted and received by Weber in Kansas City, Missouri, October 18, 1900, under the terms of his contract of sale and not simply as bailee as claimed by appellant.
This is an action for the price of a certain beef steer alleged to have been sold and delivered by the plaintiff to the defendant at Kansas City on the 18th day of October 1900. The judgment in the trial court was for the plaintiff. The defense, which we are to consider, is the Statute of Frauds, section 3419, (Revised Statutes 1899) reading as follows: "No contract for the sale of goods, wares and merchandise for the price of thirty dollars or upward, shall be allowed to be good, unless the buyer shall accept part of the goods so sold, and actually receive the same, or give something in earnest to bind the bargain, or in part payment, or unless some note or memorandum in writing be made of the bargain, and signed by the parties to be charged with such contract, or their agents lawfully authorized."
The price, at which the steer was alleged to have been sold, was $ 1.53 per pound and he weighed fifteen hundred and sixty-four pounds, thus making the price $ 2,392.92, and it was for that sum plaintiff obtained judgment. The contract was verbal and no earnest money was paid, so we have only to ascertain whether defendant accepted and also actually received the steer.
As the case is to be disposed of on defendant's demurrer to the evidence, we will consider it as developed by the evidence in plaintiff's behalf. Plaintiff testified that he was the owner of the steer called "Old Times" from a calf up to October 18, 1900. That he was a prize steer and that he exhibited him at expositions and live stock shows in Missouri, Illinois, Minnesota and other places, where he had taken various premiums. That, on October 18, 1900, he sold the steer at Kansas City to defendant, who owned and managed a large retail meat market in that city. The plaintiff gave his deposition before the trial and several of his statements at the trial of the detail of the sale and its terms were not consistent with those made in the deposition; but taking the testimony as given by him at the trial, we find that he resided on a farm in Livingston county, Missouri, where he dealt in Hereford cattle and that he brought the steer in controversy to Kansas City in October, 1900, to exhibit at the cattle show at that place, with one of his employees in immediate charge of him. That he had theretofore "entered him" for exhibit at the Stock Exposition, sometimes called Fat Cattle Show, at Chicago, Illinois, which was to be held in December following. That defendant saw the steer while at Kansas City in a stall where plaintiff kept him and desired to purchase him. Plaintiff, at first, refused to sell, telling defendant that he had entered the animal for exhibition at the Chicago show in December and that in consequence he could not sell. That defendant was extremely anxious to buy, as he thought the sale of beef from the carcass of so noted an animal, which had been such a notorious prize winner, would be an advertisement and add much to his prestige as the keeper of a high class meat market, and he therefore suggested to plaintiff that he thought they could remove plaintiff's objections satisfactorily. It was then agreed that defendant was to pay three cents per pound more than the highest price paid for any beef bullock, which should be sold at the Chicago exhibition in the following December. That plaintiff should be allowed to keep the steer, take him back to his farm, feed and care for him and take him to Chicago to the exposition for exhibit alive on foot, and dead as a beef carcass; the premiums, if any, to be plaintiff's. From his testimony, it also appeared that defendant tacked a card on the stall where plaintiff kept the steer with the words, "This beef bought for A. Weber, 1115 Walnut street, Kansas City, Mo." and that, perhaps more than once during the exposition, defendant led the animal out of the stall and showed him to friends as being purchased by him; but that the animal was kept in the stall and remained in charge of plaintiff's employee until he took him back to his farm. He then testified that an animal was sold at auction at the Chicago exposition for $ 1.50 per pound, thus making the price to defendant $ 1.53, under the terms of the sale, as stated.
Plaintiff's only contention in avoidance of his act in keeping the possession of the steer for several weeks after the alleged completed sale at Kansas City is on the idea of a bailment that is to say, that he became, after the sale, the defendant's bailee. It is quite true that it frequently happens that personal property at time of sale is in possession of a third person, as a livery man, agister, warehouseman, and the like, and yet the purchaser may actually receive the property, so as to satisfy the statute, and then permit it to be retained by the party in possession as his bailee. And so there is no legal impediment to the vendor himself becoming the purchaser's bailee, where the receipt of the property by the purchaser has been clearly shown. [Tiedeman on Sales, sec. 69.] But in all such cases (as well as all others), the receipt of the property must have been absolute, and his dominion over...
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