Turner Looker Liquor Co. v. Hindman

• Decision Date: 18 June 1921
• Docket Number: No. 2781.,2781.
• Citation: 232 S.W. 1076
• Parties: TURNER LOOKER LIQUOR CO. v. HINDMAN et al.
• Court: Missouri Court of Appeals

232 S.W. 1076

TURNER LOOKER LIQUOR CO. v. HINDMAN et al.

No. 2781.

Springfield Court of Appeals. Missouri.

June 18, 1921.

Appeal from Circuit Court, Stoddard County; W. S. C. Walker, Judge.

Action by the Turner Looker Liquor Company against W. T. Hindman and another, doing business as the Caruthersville Distilling Company. From a judgment for defendants, plaintiff appeals. Reversed and remanded, and certified to the Supreme Court.

J. Duncan, of Caruthersville, for appellant.

Ward & Reeves, of Caruthersville, for respondents.

COX, P. J.

Action by plaintiff to recover the contract price of 125 cases of whisky sold by plaintiff to defendants. At the close of plaintiff's testimony the defendants offered to show that $625, paid by defendants at the time the whisky was ordered, was to cover and liquidate the probable freight charges. An objection by plaintiff to this offer was sustained. No other offer of testimony was made by defendants, and the court then peremptorily instructed the jury to find for defendants; verdict was so rendered, and plaintiff has appealed.

Plaintiff's salesman took an order from defendants at Caruthersville, Mo., for 300 cases of whisky, which were, at the time, in bond in a distillery in Kentucky. The whisky was to be sent in two shipments. One shipment of 175 cases was made and paid for; the second shipment was made and the balance thereon not paid.

The contract of purchase provided that the goods were bought f. o. b. distillery, and $5 per case was paid at the time. It was agreed that the goods should be shipped to shipper's order and draft for the balance of the price with bill of lading attached sent to Citizens' Trust Company at Caruthersville, and that on arrival of the draft the defendants would pay it and take up the bill of lading and the goods. Plaintiff shipped the goods as agreed by the parties. The draft with bill of lading attached reached Caruthersville before the goods arrived and was presented to defendants for payment, when they asked the bank to hold it until the goods arrived. The goods arrived between the 25th and 30th of May, and on their arrival the depot agent immediately notified defendants of their arrival by phone. The next day he notified them by postal card, and saw them at least twice afterward and asked them to take the goods away from the depot. On June 6th plaintiff wrote defendants that they had received no returns on the draft and asked them to honor it. On or about June 9th, and after the goods had remained in the depot 10 or 12 days, the depot agent saw one of defendants and again requested that they come and get the goods and was informed that they would do so the next day. That night the depot and these goods were destroyed by fire. Defendants then refused to pay the draft, and this suit followed.

The question here involved is whether on the facts above stated the court should have sent the case to the jury instead of directing a verdict for defendants.

It is apparent in this case that the final refusal of defendants to pay the draft resulted from the destruction of the goods by fire. It is also apparent that defendants were in default and had, in fact, breached their contract before the fire, and that plaintiff was at no time in default, but had done everything the contract required it to do before the fire occurred. In this situation on whom should the loss occasioned by the fire fall?

When chattels are lost or destroyed, it is usually, if not universally, held that the loss follows the title to the goods and must be borne by the party in whom the title rests at the time of the loss or destruction of the goods. In some instances it is difficult to ascertain with certainty where the title rests at a particular time, and often is to be determined by ascertaining the intention of the parties to the contract, for the time of the passing of title to chattels from one party to another, unless specifically provided for in the contract itself, is largely a question of intention, and possession of the goods does not necessarily determine the matter. Title may pass and possession be held by the seller, or the purchaser may secure possession without the title passing. Ober et al. v. Carson's Ex'r, 62 Mo. 209, 214; Strother v. McMullen Lbr. Co., 200 Mo. 647, 657, 98 S. W. 34.

In this case the plaintiff had fully performed its part of the contract. The goods were shipped as agreed. They arrived safely at Caruthersville. The bank and the depot agent were the agents of plaintiff, and through them plaintiff had tendered the goods and demanded payment of the draft, and this tender and demand of payment were kept good up to the time of the fire. True, they did not offer to surrender possession of the goods to defendants without payment of the draft, but a tender of possession of the goods on condition that the draft be paid was a valid tender, for when concurrent acts are to be performed by the seller and the buyer an offer of one to do the act required of him on condition that the other party will respond in kind is a valid tender. Wheelock v. Tanner, 39 N. Y. 481; Smith v. Lewis, 26 Conn. 110; Shouse v. Doane, 39 Fla. 95, 21 South. 807; Taylor v. Mathews, 53 Fla. 776, 44 South. 146.

Plaintiff, then, having done all that the contract required it to do and having made tender of the goods, and defendants having defaulted, the cause of action of plaintiff immediately accrued, and it was authorized to pursue such course under the law as would, in its judgment, best protect its interest. As was well said by Judge Goode, speaking for the St. Louis Court of Appeals in Range Co. v. Mercantile Co., 120 Mo. App. 438, loc. cit. 446, 96 S. W. 1040, loc. cit. 1042:

"The guiding principle of the law in cases arising on breaches of contracts for the sale of personal property is to give the aggrieved party the benefit of his contract, by putting him in as favorable a condition as he would have enjoyed if the other party had performed, instead of violating, his agreement."

Guided by that principle, the law allows the seller a choice of three remedies when the purchaser breaches his contract and refuses to take the goods. He may treat the goods as belonging to the purchaser and hold them subject to the purchaser's order and demand and sue for the purchase price, or he may sell to some other person and if, after using due care, he must sell at a loss, he can recover the loss, or he may retain the property as his own and sue for the difference between its market value and the contract price.

The plaintiff in this case had evidently elected to hold the goods for defendants and insist on payment of the purchase price, for on June 6th, after the goods had been several days in the depot waiting for defendants to pay the draft and secure the bill of lading and remove the goods, plaintiff wrote defendants, stating it had received no remittance on the draft and insisting that they take it up and by so doing manifested a decision to stand on its contract, as it had a right to do, and require payment for the goods by defendants. Plaintiff's cause of action and its right to a choice of remedies had accrued before that letter was written, and, with knowledge of that fact, plaintiff again requested defendants to pay for the goods. Plaintiff should, of course, make his election within a reasonable time, but whether or not an election of remedies had in fact been made before the fire, the plaintiff can certainly not be held to have unreasonably delayed its election when it was only waiting on defendants for their accommodation and they had not notified plaintiff of their intention to refuse to take the goods, if they had formed such an intention. In any event, under our view of the law applicable to the facts in this case, we hold that, after the plaintiff had fully performed on its part and had tendered the goods as above stated, then, as long as plaintiff held the goods for defendants and insisted on their taking them and paying for them, the goods were held at defendants' risk as to accident, and they should bear the loss. McJilton v. Smizer, 18 Mo. 111; Williams v. Evans' Adm'r, 39 Mo. 201, 204; Wheless v. Meyer & Schmid Grocer Co., 140 Mo. App. 572, 586, 120 S. W. 708, 712; Hayden v. Demets, 53 N. Y. 426, 431; Clark v. Draper, 19 N. H. 419, 421; Thayer v. Davis, 75 Wis. 205, 43 N. W. 902; Waples et al. v. Overaker et al., 77 Tex. 7, 13 S. W. 527, 19 Am. St. Rep. 727; Weathered v. Golden (Tex. Civ. App.) 34 S. W. 761; Wing v. Clark, 24 Me. 366.

In Williams v. Evans, 39 Mo. loc. cit. 204, the court said:

"It is held by the adjudged cases, which are very numerous, and also by the elementary writers, that when the seller has performed all that is required of him by the terms of the contract, and delivery alone remains to be made, the property vests in the buyer so as to subject him to the risk of any accident which may befall the subject-matter of the sale."

The facts of this case seem to us to bring it clearly within the rule there announced. If defendants had performed their part of the contract, the plaintiff would have received pay for the goods, and they would have been removed from the depot several days before the fire. It was defendants' default and neglect that kept the goods in the depot until they were destroyed, and to allow them to escape liability now because the goods were destroyed would be to permit them to profit by their own wrong, or at least to escape liability by means of their own default and negligence.

We have been cited by respondents to a number of cases in which it is held that, where goods are sold and shipped to shipper's order and draft with bill of lading attached sent and possession of the goods withheld from the purchaser until payment is made, the title to the goods does not pass until the draft is paid or payment tendered by the purchaser. We fully recognize that rule of law and do not controvert it, but those cases do not reach the...