Springfield Seed Co. v. Walt

• Decision Date: 15 April 1902
• Citation: 67 S.W. 938,94 Mo. App. 76
• Parties: SPRINGFIELD SEED CO. v. WALT.
• Court: Missouri Court of Appeals

67 S.W. 938

94 Mo. A. 76

SPRINGFIELD SEED CO. v. WALT.

Court of Appeals of St. Louis, Missouri.

April 15, 1902.

CONTRACT OF SALE — COVENANTS — BURDEN OF PROOF.

1. Stipulation in a contract of sale of seeds by plaintiff to defendant for an exclusive market for defendant is independent of defendant's undertaking to pay for the seeds; so that plaintiff does not, as a condition of recovery, have to prove that defendant had an exclusive market; but defendant may merely sue for or counterclaim for such damages as he may prove because plaintiff encroached on such market.

2. Under a contract of sale by plaintiff to defendant of seeds, stipulating for an "exclusive sale" for defendant, defendant has the burden of proving that such term includes his customers outside the town in which is his store, and plaintiff the burden of proving that defendant assented to a sale in such town.

Appeal from circuit court, Howell county; Evans, Judge.

Action by the Springfield Seed Company against Martin Walt. Judgment for defendant, and plaintiff appeals. Reversed.

The plaintiff is a domestic corporation engaged in the business of selling garden seeds at wholesale, and brought this action to recover from the defendant the price of 25 boxes of seeds. The action is based on the following contract: "Order for Package Garden Seeds from Springfield Seed Store, Ricketts & Walker, Proprs., Springfield, Mo. Please ship in due time for season of 1901, 25 boxes, 500 each of assorted garden seeds in lithographed packages, at $15.00 per 1,000 packages. No additional charge for seed cases. Terms: Net June 1st, 1901, five per cent. spot cash on receipt of invoice, $187.50. Our packet seeds are not sold on commission. The sale is outright, and bill is due and payable on the above terms. But to protect you against loss, and at the same time to protect our own reputation, our agent, when he calls next season, will take up and destroy all 5-cent packets you may have on hand that vitality expires on, and that will be unfit for next year's sale, and allow you to select the value of the seed so destroyed in any seed you may desire for the following season's trade. [Signed] K. C. Produce Co., West Plains, Mo. Ship Jan. 1st, 1901, without fail. Exclusive sale." The defendant admitted the execution of the contract and the delivery of the seeds to the amount of $187.50. The answer then stated that the defendant bought the seeds under a contract and understanding with the plaintiff that he was to have the exclusive sale of seeds in West Plains, and to his customers, country merchants, outside the city of West Plains; that the defendant had violated the contract by selling seeds of the same variety to dealers in West Plains and to defendant's customers throughout the country. The answer further alleged that defendant used his best efforts to sell the seeds; that he sold all he could, to wit, 13 boxes; that, if plaintiff had carried out its contract, he could have sold all the rest of the seeds, to wit, 12 boxes, thereby realizing a profit of $5 on a box, but on account of the plaintiff's breach of the contract defendant was prohibited from selling the same; that the amount realized by the sales he made was $97.50, which sum he tendered to plaintiff in open court, and also 12 boxes remaining unsold. Plaintiff's replication denied the allegations of new matter contained in the answer, and averred that the contract between the parties gave the defendant the exclusive right to sell in the city of West Plains, and at no other point, and that by the contract plaintiff was not excluded from selling seeds at places other than West Plains. The sale of one box for $7.50 to a firm by the style of Doty & Woodrel, in the city of West Plains, was admitted in connection with an averment that the defendant was notified of that sale at the time he gave the order to plaintiff, and assented to it; and the replication offered to deduct the value of the seeds so sold to Doty & Woodrel from its account against the defendant. A stipulation was made between the parties and introduced on the trial admitting that after the contract was made between plaintiff and defendant, plaintiff sold boxes of seeds of the same kind and variety sold to defendant to four firms of merchants doing business at different points in Ozark county, Mo., and to one firm in Fulton county, Ark. It is proper to state somewhat fully the testimony of the defendant Walt, as the defense rests on it entirely. He swore: That Richard Ricketts, a member of the plaintiff company, and its agent, visited him at his place of business in West Plains in September, 1900, saying he wanted to place plaintiff's seeds with one man in West Plains, and would like to make arrangements with the defendant, as he was a large dealer. That Ricketts further said: "I will give you the exclusive sale of these seeds. You will get the exclusive sale." Walt said: "I studied a few minutes, and I says, `I will do it.' At first he omitted `exclusive sale,' and I called his attention to it, and he added it to it right on the bill there, and urging them to ship January first. The seeds came, I think, on January second." He further testified that several merchants came in and got goods, and he tried to sell them seeds. Some of them had seeds in their wagons. Walt further testified as follows: "Q. What was the inducement for you to buy so many seeds? A. That I could sell them to the country merchants and men here in town, — that I could job them. Q. That was discussed by you and Ricketts? A. Yes, sir. Any one knows that twenty-five boxes of garden seeds are too many for a man to retail. He couldn't possibly retail them." On cross-examination he testified: "Q. You say you had the right to sell at other points to country merchants? A. Yes, sir. Q. What points were mentioned in your conversation between you and him? A. No points. Q. How was he to know where you wanted to sell these seeds unless he knew the points you traded? A. I sold every place over this country. Q. How did he know unless you told him? A. He didn't know where I sold, I guess. Q. You took the privilege of twenty-five boxes here to cut them out of sales in all southern Missouri? A. No, sir; I didn't. Q. What places did you include in this term `exclusive sale'? A. I expected those that traded with me, — my customers. Q. You never informed them who you traded with? A. No, sir; I didn't. Q. They never knew until this term of court who you claimed traded with you? A. No, sir; they didn't. What should a man do if he is a jobber?" Further along occurred the following: "Q. Did you tell these people that Wiles & Co. were customers of yours? A. Certainly not. Do I tell my business to the whole world? Q. Did you think your twenty-five boxes of seeds gave you the exclusive right to southern Missouri? A. No, sir; I expected to sell to anybody who came in to buy goods. I would show him, and try to sell to him. Q. E. N. Rand, Wild Cherry, Fulton county, Arkansas? A. Yes, sir. Q. They are customers of yours? A. Yes, sir. Q. Do you claim exclusive right to sell to them? A. No, sir; I don't. I claimed the exclusive right to sell to anybody that wanted them. Q. You claimed the exclusive right just as the wholesale company at Springfield sells seeds to you? A. Yes, sir." It appears that the sales of seeds made to outside merchants in southern Missouri and northern Arkansas by the plaintiff occurred during the spring months, and that the defendant made no complaint of those sales, although he knew about them, until he was pressed to pay his account in June, when he wrote the following letter: "West Plains, Mo., June 12, 1901. Springfield Seed Store, Springfield, Mo. — Gents: Your statement to hand, and in reply we will say we are ready to pay you for what seeds we have sold, but will not pay for those unsold. We have written contract to have exclusive sale here, and instead almost every one has them, and you had a drummer to sell every little store around West Plains. As a consequence, we decline to pay for only what we have used. Any time you come down, we will check up with you. Yours truly, Kansas City Produce Co." Prior to that he said he had written a notation on a statement of...