Stout v. Carruthersville Hardware Co.

• Court: Missouri Court of Appeals
• Writing for the Court: Goode
• Citation: 110 S.W. 619,131 Mo. App. 520
• Parties: STOUT v. CARRUTHERSVILLE HARDWARE CO.
• Decision Date: 12 May 1908

110 S.W. 619 131 Mo. App. 520 STOUT
v.
CARRUTHERSVILLE HARDWARE CO. St. Louis Court of Appeals. Missouri. May 12, 1908.

1. SALES — PAYMENT FOR BUYER BY THIRD PERSON — RECOVERY OF EXCESS PAID.

In an action to recover an excess of price paid defendant for goods purchased from it, where the goods were bought by plaintiff's agent, but the price paid by another who was indebted to plaintiff and paid for the goods to cancel such indebtedness, and there was evidence tending to show that defendant knew the goods were really bought for plaintiff, the fact that the goods were paid for by another for plaintiff would not prevent him from recovering any excess paid therefor.

2. SAME — REQUISITES — MONEY PRICE.

An essential element of a sale is a money price, either fixed by an agreement or capable of being ascertained from the agreement of the parties.

3. SAME — CERTAINTY OF TERMS — NECESSITY.

A contract of sale must be certain in its terms or capable of being made certain; and, while in the sale of a chattel it is not necessary that the price be named, if not named some method of ascertaining it must be indicated by the parties.

4. SAME — CERTAINTY AS TO PRICE.

Where plaintiff bought goods from defendant, an agreement by the latter that the price charged would be as cheap as they could be bought anywhere was too indefinite as to the price to be paid to be enforced either at law or in equity as a contract, as the agreement neither fixed the price of the goods nor furnished a practicable means of determining the same.

5. SAME — COMPLETED SALE — ACTION FOR REASONABLE VALUE.

When a sale, which is incomplete as a contract because the price was left uncertain, is completed by delivery of the article sold, the law treats the transaction as a sale for the reasonable value of the article.

6. SAME — MISREPRESENTATION BY SELLER — VALUE.

While misrepresentation as to value is not generally actionable when it does not amount to a warranty of value, where defendant sold plaintiff certain goods and agreed that the price charged would be as cheap as they could be bought anywhere, the representation as to price was an essential element of the transaction, and not mere dealers' talk.

7. MONEY RECEIVED — GROUNDS OF OBLIGATION.

The action for money had and received is governed by equitable principles, and generally lies whenever one person has received money belonging to another which in justice and good conscience should be returned.

8. SALES — REMEDIES OF BUYER — RECOVERY OF PRICE — MONEY OBTAINED BY MISREPRESENTATIONS.

Where plaintiff purchased supplies from defendant, who agreed to sell the goods as cheaply as they could be bought anywhere, and plaintiff was led by the representations to pay too much for the goods, he may recover on the common counts for money had and received the money wrongfully paid in excess of the reasonable value of the goods.

Appeal from Circuit Court, Pemiscot County; Henry C. Riley, Judge.

Action by J. W. Stout against the Carruthersville Hardware Company. From a judgment for plaintiff, defendant appeals. Reversed and remanded.

Farris & Oliver, for appellant. Ward & Collins, for respondent.

GOODE, J.

In the year 1904 this plaintiff was engaged at Pascola in Pemiscot county in loading logs for a sawmill known as the "Lewis mill." He needed in the work, which was done in the main by derricks, a good deal of wire rope, steel blocks, and wire rope clamps. Having occasion to purchase such articles, he arranged with John Powell to go to Memphis and buy them, preferably, unless better prices could be obtained from some other dealer, from a firm there of hardware dealers styled F. C. Atkins & Co. Powell lived in Carruthersville, about 12 miles from Pascola, and was in the employment of John Spangler, who had a stave factory at Carruthersville. Plaintiff furnished his own machinery and appliances, but he, too, was working for Spangler, and the latter was indebted to him, a circumstance which will be seen to cut a figure in the case. After Powell had been commissioned to buy the goods in Memphis, he first went from Pascola to his home in Carruthersville, intending to stay over night there and go on next day to Memphis. Charles Dorroh manager of defendant company, which did business in the city of Carruthersville, learned of Powell's errand, and, as Dorroh expressed it, "went after the order" for defendant. In an interview with Powell Dorroh represented and agreed, if the order was given to defendant, the goods would be furnished for as low prices as they could be bought for anywhere else. With this understanding, and without any prices being named, Powell gave Dorroh the order, and the goods were shipped by defendant to plaintiff at Pascola, and charged on defendant's books to Spangler, pursuant to Powell's direction. They were so charged, because, as Spangler was indebted to plaintiff, the former was to pay for the goods, and deduct the amount from the indebtedness. This was done, and plaintiff reimbursed Spangler the amount of the bill, which was $316.72. Some time afterward plaintiff learned defendant, instead of charging the current prices of the goods in Memphis and which F. C. Atkins & Co. would

110 S.W. 620

have sold them for, had charged and collected excessive prices. He laid the matter before Dorroh, demanding repayment of the excess, and, according to his statement, Dorroh promised from time to time to repay him, but never did. Finally this action was brought for the excess, which was laid in the petition at $151.94. The jury returned a verdict in plaintiff's favor for $98; and, from a judgment for said sum, defendant took this appeal. The petition says defendant promised and agreed to sell and deliver the articles of hardware to plaintiff "for the sum and prices plaintiff at said time could purchase the same of F. C. Atkins & Co. of the city of Memphis, Tenn., or any other dealer in such goods in said city or in any other market"; and that defendant represented to plaintiff the amount of the bill ($316.72) was the price and sum charged at the time by F. C. Atkins & Co., of Memphis, Tenn., and other dealers in said city or any other market for said goods, or for the same amount and quantity of goods of the same kind and quality, and plaintiff, relying on said false and fraudulent representations and believing them to be true, paid defendant the sum so charged. It is further averred the prices charged by F. C. Atkins & Co. and other dealers in the city of Memphis, or any other market, for the same kind and quantity of goods, was not the sum of $316.72 charged by defendant, but $189.76; that, when plaintiff paid for the goods, he did not know the prices for which he could have purchased said goods from F. C. Atkins & Co. or other dealers in the city of Memphis, or any other market, and, as soon as he became aware he had paid defendant more than the contract required him to pay, the demanded of defendant the amount overpaid, but defendant refused to repay it....