The State v. Swift & Co.
| Decision Date | 16 February 1918 |
| Parties | THE STATE v. SWIFT & COMPANY, a Corporation, and F. A. HUNTER, Manager, Appellants |
| Court | Missouri Supreme Court |
Appeal from St. Louis Court of Criminal Correction. -- Hon. Calvin N. Miller, Judge.
Reversed and remanded.
A. & J F. Lee and James A. Waechter for appellants.
The court erred in refusing to discharge the defendants at the close of the State's case, because: (a) the evidence showed without conflict that the defendants did not "in the city of St. Louis, State of Missouri, on the fourth day of October, 1915 [or any other day], unlawfully and wilfully offer for sale and keep on hand for the purpose of sale to Stocker Brothers, a substance which was then and there composed of animal fat," etc.; (b) the evidence clearly showed that the sale in question was effected and the title to the goods passed to Stocker Brothers in Illinois; and (c) there was no proof on the part of the State of any sale by appellants in Missouri. State v. Rosenberger, 212 Mo. 650; State v. Wingfield, 115 Mo. 428; Kerwin & Co. v. Doran, 29 Mo.App. 397; Glass v Blazer, 91 Mo.App. 564; Cunningham v. Ashbrook, 20 Mo. 553; Bank v. Smith, 107 Mo.App. 178; Ober v. Carsons, Executor, 62 Mo. 209; State v Newell, 140 Mo. 282; Longsdorff v. Meyers, 171 Mo.App. 256; Bass v. Walsh, 39 Mo. 192; Wheless v. Grocer Co., 140 Mo.App. 572; Benjamin on Sales (5 Ed.), 2; State v. Scott, 189 S.W. 1191; Garrbracht v. Commonwealth, 96 Pa. 449; Commonwealth v. Hess, 148 Pa. 98; Williston on Sales (1909 Ed.), 353-547; Williams v. Evans, 39 Mo. 234.
Frank W. McAllister, Attorney-General, and S. E. Skelley, Assistant Attorney-General, for the State.
The court properly refused to discharge defendants at the close of the State's case. (1) There was no material variance in the seeming discrepancy between the allegations of the information and the proof offered by the State in support thereof. (a) To constitute a variance, there must be such a lack of harmony between the allegations and the evidence as to render the proof inadequate. 2 Bishop on New Criminal Procedure (2 Ed.), sec. 484a, 3. (b) Where the substance of the issue is proved, no variance is encountered. 2 Bishop on New Criminal Procedure (2 Ed.), sec. 488b, 1; 22 Cyc. 455-456, 481; State v. Mohoney, 122 Iowa 168; Adams v. People, 25 Colo. 532; State v. Brown, 82 N.C. 585. (c) Evidence of delivery by defendants of colored oleomargarine to a customer is proof of "sale" or "offer for sale" in violation of the statute. People v. Koch, 19 Misc. 634, 44 N.Y.S. 387; People v. Dairy Co., 122 N.Y.S. 294; Willis v. Oil Co., 50 Minn. 296; Commonwealth v. Gordon, 159 Mass. 8; People v. Lewis, 122 N.Y.S. 1025. (2) Uncontradicted evidence of a delivery of colored oleomargarine by defendants to a customer in the city of St. Louis is sufficient to make out a prima facie case against defendants. People v. Koch, 19 Misc. 634, 44 N.Y.S. 387; People v. Dairy Co., 122 N.Y.S. 294. (a) Unless there is an absence of substantial evidence to sustain the verdict, the finding of the jury will not be disturbed on appeal. State v. Chenault, 212 Mo. 132-137; State v. Sassaman, 214 Mo. 737; State v. Burton, 214 Mo. 316; State v. Maurer, 255 Mo. 168. (3) The evidence clearly showed that the sale in question was consummated and that property in the goods passed to the vendee in Missouri. (a) Where, by the terms of the contract of sale, the seller is required to send, forward or deliver the goods to the buyer or to some one for him, at a designated place, title thereto does not vest in the buyer until the transportation is at an end, or the goods are delivered in accordance with the contract. 35 Cyc. 302-303; Benjamin on Sales (5 Ed.), pp. 322-323; Williston on Sales, sec. 280, pp. 405-407; Tiffany on Sales (2 Ed.), p. 156; 24 Am. & Eng. Ency. Law, p. 1050; Henning v. Powell, 33 Mo. 468; Hance v. Railway, 62 Mo.App. 63; Taussig v. Mill Co., 124 Mo.App. 209; Scharff v. Meyer, 133 Mo. 448; Metal Co. v. Daughetry, 204 Mo. 82; Milling Co. v. Kramer Bros., 71 Kan. 468; Commonwealth v. Adair, 89 S.W. 1130; Hogins v. Combs, 102 Ky. 165; Lumber Co. v. Railway, 74 N.W. 670; Taylor v. Cole, 111 Mass. 363; Buckingham v. Drake, 112 F. 270. (b) The use of such words as "sold" and "purchased" in the invoice, order or other evidence of transactions concerning the transfer of personal property is not conclusive evidence of completed contract, and does not necessarily imply a change of title in the goods. Iron Co. v. Mfg. Co., 80 F. 878; Gallup v. Sterling, 49 N.Y.S. 945; Blockwood v. Packing Co., 76 Cal. 212; Shainwald v. Cody, 92 Cal. 83; Brooks v. Libby, 86 Me. 151.
The Assistant Prosecuting Attorney of St. Louis Court of Criminal Correction filed information in that court charging that the defendants "did on the 4th day of October, 1915, unlawfully and wilfully offer for sale and keep on hand for the purpose of sale to Stocker Brothers, a corporation, a substance" which is described as composed of animal fat, etc., and colored in imitation of butter. The charge is a violation of section 651, Revised Statutes 1909. The case was first appealed to this court and transferred to the St. Louis Court of Appeals for want of jurisdiction. On a hearing, a majority of the St. Louis Court of Appeals held that the evidence sustained the verdict of guilty as charged in the information, but Judge Reynolds of that court, dissenting, caused the same to be certified to this court on the ground that the majority opinion was in conflict with the decision of the Kansas City Court of Appeals in the case of State v. Scott, 189 S.W. 1191, and with the decision of this court in the case of State v. Rosenberger, 212 Mo. 648, 111 S.W. 509.
The evidence shows that the defendant Swift & Company had what is called a "plant" in East St. Louis, Illinois, and that the defendant Hunter was manager of the business of that corporation at that place. Stocker Brothers was a corporation engaged in the grocery business in the city of St. Louis, Missouri. On October 4, 1915, someone representing Stocker Brothers in St. Louis called Swift & Company in East St. Louis on the telephone and ordered a hundred and fifty pounds of colored Lincoln oleo. That amount of that commodity, being five thirty-pound cases, was then separated from the general stock, loaded into a wagon belonging to Swift & Company, hauled to Stocker Brothers' store in St. Louis, Missouri, and there delivered; the price for the same was charged to Stocker Brothers by Swift & Company and the bill was paid November 26, 1915.
There is no dispute that this commodity was of a character condemned by the statute. The defendants were arrested on the information above set out, with the result as mentioned. It was held by a majority of the St. Louis Court of Appeals that the oleomargarine in question was kept on hand by the defendants in the city of St. Louis for the purpose of sale. While the statute is leveled at a sale of oleomargarine, colored so as to resemble butter, as well as keeping the same on hand for sale, the information does not charge a sale, but charges the keeping on hand and offering for sale.
This case differs from the case of State v. Rosenberger, 212 Mo. 648, 111 S.W. 509, which concerns the sale of liquor by a firm in Kansas City on an order from a dealer in Webster County, Missouri, a local option county. The liquor was delivered to the railroad and shipped C. O. D. It was held that the sale took place in Kansas City and not in Webster County, and, therefore, was not in violation of the Local Option Law. The Rosenberger case was followed in the Scott case and in other cases where liquor was the subject of the sale. In those cases delivery to a carrier C. O. D. was held to be delivery to the purchaser. In this case, Swift & Company sent their own wagon with the oleomargarine to Stocker Brothers' place of business in St. Louis. The bill accompanying the goods bears the mark C. A. F. E., which was explained by Mr. Hunter to mean cost of goods and delivery charges; that the price paid by defendants included those items.
The rule in this State in sales of this character is that where anything remains to be done between the parties before the property is delivered, as separating the specific quantity from a larger amount, or identifying it, the sale is not complete; but after the separation for the purpose of delivery, when there is nothing further to be done except to deliver the goods, the sale is complete and the title passes. [Bank v. Smith, 107 Mo.App. 178, 81 S.W. 215; Longsdorff v. Meyers, 171 Mo.App. 255, 157 S.W. 85.] The only thing that was lacking in this case was the separation of the goods from the general stock. After they were separated and segregated by placing them in the wagon for the purpose of delivery it would look as if the contract of sale was complete at that time, and title passed, as would have been the case if Swift & Company had had only five cases of oleomargarine and Stocker Brothers had been in the store at the time, designated the five cases, and agreed upon the terms of purchase.
It seems to make no difference that the goods were not paid for at the time, but charged to the purchaser's account. It is held usually that where a contract of sale is made for a specific article to be charged for and where there is nothing more to do except to deliver it and collect the price, the contract of sale is complete without delivery and without payment. [ In the Hess case the seller conducted a...
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