Swan-Haverstick v. Siebens
| Decision Date | 03 November 1931 |
| Docket Number | No. 21536.,21536. |
| Citation | 42 S.W.2d 937 |
| Parties | SWAN-HAVERSTICK, Inc., v. SIEBENS. |
| Court | Missouri Court of Appeals |
Appeal from Circuit Court, St. Louis County; Julius R. Nolte, Judge.
"Not to be officially published."
Action by Swan-Haverstick, Inc., against Walter C. Siebens, who filed a counterclaim. From a judgment in favor of plaintiff, both on its cause of action and on defendant's counterclaim, defendant appeals.
Affirmed.
Wurdeman, Stevens & Hoester, of Clayton, for appellant.
Grant & Grant, of St. Louis, for respondent.
Plaintiff is a manufacturing concern located in Trenton, N. J., and manufactures, among other things, apparatus for installing outside aerials for radios. Defendant's place of business is in St. Louis. Plaintiff puts different combinations of the apparatus into kits. In plaintiff's catalogue these kits are listed and numbered according to the articles contained in them. Among other numbers listed in the catalogue there are No. 401 and No. 406.
Plaintiff in its petition alleges that on July 11, 1927, plaintiff and defendant entered into a contract, in writing, whereby plaintiff agreed to sell and deliver to defendant, and defendant agreed to purchase from plaintiff, one thousand aerial kits, as follows:
"2 Aerial Insulators 3½" × 1".
That prior to September 1, 1927, three hundred forty of said kits were delivered by plaintiff to defendant at defendant's request, in accordance with said contract, and that defendant paid plaintiff the full contract price therefor. That defendant did not call for the delivery of the remainder of said kits under said contract, and that on December 31, 1927, plaintiff shipped the remainder, being six hundred sixty of said kits, to defendant, in accordance with said contract, and that by reason of the premises defendant owes plaintiff $445.50, for which plaintiff prays judgment.
Defendant's answer denies generally the allegations of the petition, and by way of counterclaim alleges that plaintiff sold defendant one thousand No. 401 aerial kits, and failed to deliver said kits as it was required to do under the terms of the contract of sale, and prays judgment for $500 damages for such breach of the contract of sale.
The trial, with a jury, resulted in a verdict and judgment in favor of plaintiff both on its cause of action and on defendant's counterclaim. Defendant appeals.
Defendant insists upon a reversal of the judgment here on the grounds (1) that defendant contracted for the purchase of kits listed in the catalogue as No. 401, whereas plaintiff did not ship kits of that number, but instead shipped kits listed as No. 406, and (2) that, though it be held that defendant contracted for No. 406 kits, still defendant never received, and plaintiff never delivered, or offered to deliver, to defendant the six hundred sixty kits sued for, so as to entitle plaintiff to recover the purchase price thereof.
It was shown by defendant's testimony that at the time he signed the contract of sale he had before him plaintiff's catalogue, in which appeared, among others, the specifications of kits known as No. 401 and No. 406, which were identical, except that in No. 406 the wire was designated as special wire, and in No. 401 the wire was not so designated. By the testimony of one of plaintiff's officers, it was shown that the wire in kit No. 406 was so designated in order to distinguish it from other similar wires. The same witness testified that kit No. 406 was a standard quality kit. In the contract the kits purchased are designated as No. 401, but the specifications contained in the contract are those of No. 406, as shown in the catalogue.
On July 11 defendant requested plaintiff to ship "two hundred four aerial kits at 67½ ¢ to apply on contract." In response to this request, plaintiff shipped to defendant two hundred four kits of No. 406. On August 2 plaintiff, at the request of defendant, made a second shipment of No. 406 kits. The two shipments aggregated three hundred forty kits. Defendant accepted and paid for both these shipments. On August 3 defendant wrote plaintiff as follows: "Kindly send at once two hundred fifty catalogue sheets of your No. 406 Aerial Kits." On August 5 plaintiff acknowledged receipt of defendant's letter, stating that "two hundred fifty catalogue sheets of our No. 406 Aerial Kits" would be sent to defendant at once. The evidence shows that these catalogue sheets were accordingly printed and sent to defendant. On August 19 defendant wrote plaintiff as follows: "Kindly send us at once one cut of the special red label kit No. 406, same size as the one used to print the two hundred fifty sheets which we have just received." On September 6 defendant wrote plaintiff as follows: "Why is it that you do not send us cut of No. 406 Aerial Kits?" On September 15, 1927, plaintiff replied to this letter referring to the kits as No. 406, and stating that the two cuts had been sent to defendant.
On December 28, defendant having failed to order the remaining kits covered by the contract, plaintiff shipped to the defendant six hundred sixty No. 406 kits, and sent the bill of lading to defendant. On January 5 defendant wrote plaintiff as follows: "We have bill of lading notifying us that you have shipped six hundred sixty aerial kits, which we absolutely refuse, due to kits not coming up to specifications." Plaintiff acknowledged this letter, and asked defendant to explain why he did not think the kits came up to specifications. On January 28 defendant replied that he had given plaintiff's salesman several reasons why they could not use the kits, and that he supposed the salesman had given...
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