Twentieth Century M. Co. v. Excelsior Springs M. W. & B. Co.

• Decision Date: 23 November 1914
• Docket Number: No. 11275.,11275.
• Citation: 171 S.W. 944
• Court: Missouri Court of Appeals
• Parties: TWENTIETH CENTURY MACHINERY CO. v. EXCELSIOR SPRINGS MINERAL WATER & BOTTLING CO.

171 S.W. 944

TWENTIETH CENTURY MACHINERY CO. v. EXCELSIOR SPRINGS MINERAL WATER & BOTTLING CO.

No. 11275.

Kansas City Court of Appeals. Missouri.

November 23, 1914.

Rehearing Denied December 21, 1914.

On Motion to Transfer, December 21, 1914.

1. SALES (§ 23) — OFFER — ACCEPTANCE — MEETING OF MINDS.

An offer to buy, met by a counter offer, is refused, for there can be no contract of sale until the minds of the parties meet in mutual agreement.

2. SALES (§ 479) — ACTIONS — EVIDENCE.

Evidence held to show that the parties entered into a valid conditional contract for the purchase and sale of the articles claimed to have been converted.

3. SALES (§ 479) — CONDITIONAL CONTRACT OF SALE — REMEDY OF SELLER.

Where goods were sold under an agreement that title should remain in the seller until payment was made and the buyer failed to make payment according to the contract, the seller may stand on his title and sue in replevin or for the conversion, or waive his title and sue for the purchase price.

4. SALES (§ 473) — CONDITIONAL SALES — TITLE OF SELLER.

Where goods were sold under an agreement that the title should remain in the seller until payment, a purchaser from the buyer, who took

with knowledge of the conditional nature of the sale, is bound by the condition.

5. TROVER AND CONVERSION (§ 11) — WHAT CONSTITUTES.

Where defendant held and refused to pay for goods knowing that its vendor had acquired them under a conditional contract sale, there was a conversion, and the original seller could sue for the conversion or replevin the goods without formal demand.

6. SALES (§ 479) — CONDITIONAL SALES — REMEDIES.

For one who sold goods under a contract reserving the title until payment to sue for the purchase price is not an election barring action for conversion, where the suit was not prosecuted to judgment; for, the reservation of title being in the nature of a security for payment, it requires more than a mere effort to enforce payment to constitute a waiver of the security.

On Motion to Transfer.

7. TROVER AND CONVERSION (§ 32) — PETITION — ESSENTIALS.

The petition must show plaintiff was entitled to possession of the property at the time of the suit for conversion.

8. TROVER AND CONVERSION (§ 32) — PETITION — SUFFICIENCY.

The petition must allege the value of the property claimed to have been converted.

9. PLEADING (§ 406) — ERRORS — WAIVER.

Unless raised by demurrer, the insufficiency of a petition, which did not allege that plaintiff was entitled to possession at the time of the conversion, is waived and cannot thereafter be raised.

Appeal from Circuit Court, Clay County; F. P. Divelbiss, Judge.

Action by the Twentieth Century Machinery Company against the Excelsior Springs Mineral Water & Bottling Company. From a judgment for plaintiff, defendant appeals. Affirmed, and cause transferred to the Supreme Court.

Culver & Phillip, of St. Joseph, and Craven & Moore, of Excelsior Springs, for appellant. Richard I. Bruce, of Liberty, for respondent.

JOHNSON, J.

This suit was begun in the circuit court of Clay county, May 7, 1913, for the recovery of the value of certain machinery which, it is alleged, belonged to plaintiff and was wrongfully converted by the defendant corporation. The title claimed by plaintiff is founded on an alleged written contract in which plaintiff sold the machinery to the grantor of defendant and reserved title in itself until the payment of the purchase price by the vendee. The answer, in addition to a general denial, alleges that before the institution of this suit plaintiff waived its title in the property and elected to enforce the alleged contract as a contract of sale. The case was tried without the aid of a jury, and judgment was rendered for plaintiff. Defendant appealed.

On February 11, 1909, Henry Ettenson, who was engaged in the business of bottling and selling mineral waters at Excelsior Springs under the trade-name of "Excelsior Springs Bottling Company," entered into a written agreement with plaintiff, a manufacturer of certain types of bottling machines at Milwaukee, Wis., for the sale and delivery to him of a soaking machine for half-gallon bottles, a bottle washer, a labeler, and a rinser, for the lump price of $1,800 f. o. b. at factories. The terms of payment were one-third in 30 days "after receipt of machines, one-third 30 days, and the remainder in 60 days thereafter." It was provided:

"Party of the first part (plaintiff) retains title of the property until fully paid, in cash. This agreement is not binding on the party of the first part until approved by its own office at Milwaukee, Wis."

The instrument was signed:

"The 20th Century Machinery Co., per Wm. Ercheman, Party of the First Part.

"Excelsior Springs Bottling Co., per Henry Ettenson, Party of the Second Part."

There was no formal acceptance of the order sent to Ettenson from the office of plaintiff at Milwaukee. Two of the machines, viz., the washer and labeler, were not of plaintiff's manufacture, and under date of March 6, 1909, plaintiff wrote Ettenson from its Milwaukee office that it would be unable to ship the kind of labeler mentioned in the order and urging him to allow another kind to be furnished in lieu of the one called for. Ettenson then countermanded the order for the labeler and washer, and plaintiff accepted the countermand and afterward delivered the soaking machine and rinser to Ettenson, who installed them in his factory, where they have since been in use. The reasonable value of these machines, as well as their value as measured in the contract for the four machines, was $907.75 for the soaking machine and $55 for the rinser. Plaintiff billed them at these prices to Ettenson, and, not receiving payment, notified him that if the bill were not paid in a specified time a sight draft would be drawn for the amount. Under date of June 23, 1909, he replied:

"We are just in receipt of your statement for $962.75 which should be $900.00, as that is our contract price, on which you state that if you do not receive check by return mail you will be compelled to make protest sight draft for the amount.

"In reply will say we do not see what good it will do you to make a protest draft on us as we will not pay it until the machine has been tested. We put in our new machinery, but found that we did not have power enough to run it, so we had to put in a new boiler, and yesterday we just put up the smokestack, but as soon as we start up and find the machinery is satisfactory we will remit you for same.

"The Excelsior Springs Bottling Company's accounts do not have to be protested; they always pay their bills promptly, and if you think you will get your money quicker by protesting, go ahead and do it, but if your machinery works satisfactorily you will get your money, protest or no protest. We refer you to your cantract which says the money is to be paid after the machinery is installed.

                   "Yours truly
                       "Excelsior Springs Bottling Co
                              "By Henry Ettenson."
                

It will be noted that the signature to this letter was in the trade-name under which Ettenson had been doing business, but before the letter was written, and after the delivery of the two machines, he had transferred his business and conveyed all of the property used in its prosecution, including the machines in controversy, to the Excelsior Springs Water & Bottling Company, a corporation he had formed and caused to be incorporated under the laws of Missouri. The capital stock of this corporation was $500,000, divided into 2,000 shares of preferred and 3,000 shares of common stock. Ettenson subscribed for and owned all of the stock with the exception of 2 shares of the common, of the par value of $100 each, which were divided between the other two incorporators.

Ettenson died in October, 1909, and on October 22d of that year letters testamentary were issued by the probate court of Clay county, and his estate was duly administered. Plaintiff exhibited no demand against the estate and took no steps in any court to enforce its rights growing out of the sale until February 13, 1913, when it filed suit against the present defendant to recover the purchase price of the two machines on the theory that, as the successor to Ettenson's business, the corporation had assumed the payment of his liability to plaintiff. That suit was not prosecuted to judgment and resulted in plaintiff's being compelled to take a nonsuit. Afterward the present action was begun.

The position of plaintiff is that the machines were delivered pursuant to the terms of the written agreement as modified in the subsequent correspondence; that the acceptance by plaintiff of the contract thus made was manifested by the delivery of the machines which constituted full performance on the part of plaintiff, and that, since the sale was conditional, the failure of the vendee to perform the condition, followed by his transfer of the property to the defendant corporation, which took it with full knowledge of all the facts, left the title to the property in plaintiff in whose favor an action in the nature of trover would lie against defendant.

On the other hand, defendant contends that the written agreement was nothing more than an unaccepted offer for four machines at the lump price of $1,800, which could not ripen into a binding contract without an acceptance by plaintiff in the manner specified in the order; that there was no such acceptance but, instead, a counter proposal from plaintiff to substitute a different machine for one included in the order; and that this counter proposal was followed by an agreement that only two of the machines originally ordered by Ettenson should be delivered. It is argued that since the burden is upon plaintiff to prove a conditional sale of the machines delivered, and the only evidence of such sale is an unaccepted written offer to purchase, plaintiff must be held to have failed in its proof, which is just as...