St. Louis Carbonating & Mfg. Co. v. Loevenhart

• Citation: 190 S.W. 627
• Decision Date: 30 December 1916
• Docket Number: No. 14470.,14470.
• Court: Court of Appeal of Missouri (US)
• Parties: ST. LOUIS CARBONATING & MFG. CO. v. LOEVENHART.

190 S.W. 627

ST. LOUIS CARBONATING & MFG. CO. v. LOEVENHART.

No. 14470.

St. Louis Court of Appeals. Missouri.

December 30, 1916.

Appeal from St. Louis Circuit Court; Leo S. Rassieur, Judge.

"Not to be officially published."

Action by the St. Louis Carbonating & Manufacturing Company against Jacob H. Loevenhart. From a judgment of the circuit court for plaintiff on appeal from a judgment of the justice's court for plaintiff and from the overruling of a motion for a new trial, defendant appeals. Affirmed.

Albert C. Davis and Chester H. Krum, both of St. Louis, for appellant. Davis Biggs, of St. Louis, for respondent.

REYNOLDS, P. J.

Action by plaintiff, a corporation, against the defendant to recover the price of certain show cases manufactured for and sold to defendant by plaintiff on an agreed price. The contract was in the shape of letters exchanged between plaintiff and architects acting as agents for defendant. Plaintiff's letter to the architects was to the effect that it proposed to furnish show cases according to the specifications of the architects "for the sum of $675, and show case tables as per your specifications, for the sum of $1,145," 25 per cent. cash when the proposal was accepted and the balance when the fixtures were delivered and set up ready for use. The architects acknowledged the receipt of the letter, accepting the proposal as to the show cases, specifying that they were to be completed on or before the 1st of September, 1912. There was some delay in the completion and installation of the show cases and they were not set up until some little time afterwards, but no point is made on this delay.

The action was originally commenced before a justice of the peace by plaintiff filing a statement setting out the contract, acknowledging the receipt of the 25 per cent. paid, averring that the show cases had been furnished by plaintiff to defendant and set up complete and ready for use, and claiming there was a balance of $506; $6 of this was waived and judgment was asked for $500.

To this statement the defendant answered, alleging that plaintiff had failed and neglected and refused to furnish to and set up for defendant show cases as in the petition described, according to the contract and plans and specifications furnished plaintiff by the defendant and that as furnished by plaintiff the show cases are defective, and are not put together in proper manner; that there are large cracks in the joints, etc., and they are of no value and are not made in a first-class manner, nor are they satisfactory to the defendant as contracted by plaintiff, and defendant in his answer, tenders them to plaintiff. Defendant furthermore set up a counterclaim, but as no point is made before us on the finding of the court against defendant on his counterclaim, it is unnecessary to notice it further.

The justice found in favor of plaintiff and defendant, giving an appeal bond, appealed to the circuit court. There the case was tried before the court without a jury and resulted in a finding for plaintiff in the amount claimed and judgment was entered against defendant and against one Samuel Epstein, surety on the appeal bond. Defendant, after interposing a motion for new trial and having saved his exceptions to the action of the court in overruling that and in giving and refusing instructions, has duly appealed to our court.

If we were to pass on the weight of the evidence as to the defects in the show cases complained of by defendant, we would be inclined to say that the weight of the testimony was in favor of the defendant's contention but it appears from the declarations of law given on behalf of plaintiff and the one asked by defendant but refused that the learned trial court based his finding, not on the question of the defect in the show cases, but on the ground that defendant had not made and maintained a tender of the show cases; in point of fact, had retained them in his possession and in use down to the date of the trial.

The president of the plaintiff emphatically denied that there had ever been any tender back of the show cases. The only evidence on that for defendant is that given by defendant himself. His testimony as to what took place between himself and the president of the plaintiff company, at which defendant claims a tender was made by him, is, that this officer came to the store of defendant a day or so after the show cases had been installed and told defendant that he had come to collect his bill. Defendant said to him, "Why, you don't consider these cases finished, do you?" To which the representative of plaintiff answered, "Certainly they are finished, and I want my money." To this defendant said, "The job is absolutely unsatisfactory; the cases are...