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

• Decision Date: 01 October 1917
• Docket Number: No. 18767.,18767.
• Citation: 273 Mo. 142,200 S.W. 1079
• Court: Missouri Supreme Court
• Parties: TWENTIETH CENTURY MACHINERY CO. v. EXCELSIOR SPRINGS MINERAL WATER & BOTTLING CO.

200 S.W. 1079

273 Mo. 142

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

No. 18767.

Supreme Court of Missouri. In Banc.

October 1, 1917.

Action by the Twentieth Century Machinery Company against the Excelsior Springs Mineral Water & Bottling Company. From a judgment for plaintiff, defendant appealed to the Kansas City Court of Appeals, which affirmed the judgment (171 S. W. 944), and certified the case to the Supreme Court. Affirmed.

The petition alleged that defendant without right to do so took possession of and converted to its own use the property therein described belonging to plaintiff.

This is an action brought in the circuit court of Clay county, Mo., on May 7, 1913, to recover the value of certain personal property belonging to plaintiff, and which it is alleged was converted by defendant to its own use. The case was tried before the court without a jury, and without instructions. On December 15, 1913, the trial court found the issues in favor of plaintiff, except as to one item of the value of $55, and in due form entered judgment in favor of respondent and against appellant for $1,143.75 and costs. The cause was duly appealed by defendant to the Kansas City Court of Appeals, where it was duly abstracted and briefed by the respective parties. The Court of Appeals affirmed the judgment of the trial court in an opinion written by Judge Johnson, in which all the members of the court concurred. The case was certified to this court by the Court of Appeals on account of a conflict between its ruling and that of the St. Louis Court of Appeals in O'Toole v. Lowenstein, 177 Mo. App. 662, 160 S. W. 1016.

The opinion of the Kansas City Court of Appeals, as well as the reason for certifying the case to this court, will be found reported in 171 S. W. at page 944 and following. We deem it unnecessary to set out the opinions of the Court of Appeals herein, but the same may be considered as published supra in connection with the supplemental suggestions made by us in respect to the case.

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

RAILEY, C. (after stating the facts as above).

I. Was the trial court justified, under the facts presented in the record before us, in finding that defendant was guilty of converting to its own use, in June, 1909, certain machinery belonging to plaintiff, which the latter had conditionally sold to the Excelsior Springs Bottling Company, or Henry Ettenson, on March 4, 1909? In passing, it should be kept in mind that the case was submitted to the court without a jury, and without instructions. If there was substantial evidence at the trial sustaining the action of the court in finding for the plaintiff, we are bound by its decision in respect to this matter, unless the alleged failure of the petition to state a good cause of action precludes a recovery upon the part of respondent. Buford v. Moore, 177 S. W. loc. cit. 872, and cases cited; Kille v. Gooch et al., 184 S. W. 1158; Coulson et al. v. La Plant et al., 196 S. W. loc. cit. 1146.

The original agreement between plaintiff and the Excelsior Springs Bottling Company, or Henry Ettenson, dated February 11, 1909, contemplated a sale by plaintiff of four pieces of machinery of the estimated value of $1,800. This agreement was reduced to writing and signed by said parties. It contained, among other things, the following:

"Party of the first part 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."

There was no formal acceptance of the order sent to Ettenson from plaintiff's office at Milwaukee. Two of the machines described in the original agreement were not of plaintiff's manufacture. On March 6, 1909, it wrote Ettenson that it could not furnish the two machines above mentioned.

Upon the cross-examination of M. M. Coakley, by Mr. Moore, counsel for defendant, she testified as follows:

"Q. How did it come the labeler and the Eick washer were not shipped? A. As I recall it the Excelsior Springs Bottling Company canceled the order for the Eick washer and the labeler after they placed this contract. * * * Q. But at any rate it was agreed on before the articles that you did ship were billed out? A. That we were to accept the cancellation? Q. Yes. A. Yes; it would not be anything we would probably dispute."

This testimony, thus brought out by counsel for defendant, was not objected to, nor did defendant's counsel ask to have it withdrawn after showing that the correspondence between the parties was in writing. We do not agree with counsel that any letter was introduced in evidence contradicting this testimony. On the contrary it is in line with plaintiff's letter of March 6, 1909, to the Excelsior Springs Bottling Company, wherein the latter had been solicited to accept another machine. The testimony of this witness tends to show that the Excelsior Springs Bottling Company instead of taking another machine canceled the order for the labeler and washer formerly ordered. After this the soaking machine and rinser were delivered to the Excelsior Springs Bottling Company or Ettenson, and duly installed in their factory. Plaintiff billed the above machinery to Ettenson for $962.75, and on June 23, 1909, received from the Excelsior Springs Bottling Company, per Ettenson, a letter containing, among other things, the following:

"We are just in receipt of your statement for $962.75, which should be $900, as that is our contract price. * * * We will not pay it until the machine has been tested. * * * We refer you to your contract which says the money is to be paid after the machinery is installed." (Italics ours.)

The original agreement of February 11, 1909, contains the following:

"Said party of the second part hereby agrees to pay said party of the first part as the purchase price the sum of one thousand and eight hundred no/100 dollars, f. o. b. factories. Terms: 1/3 of this said sum to be paid 30 days after receipt of machines; 1/3 30 days, and the remaining in 60 days thereafter or 2% spot cash 10 days after installation of machines," etc.

Taking into consideration the foregoing facts, as well as other circumstances pointed out in the opinion of the Court of Appeals, we are satisfied that the trial court had before it substantial evidence tending to show that both Ettenson and plaintiff understood from the dealings between them that the original agreement was modified as to above items, and that the title to said property actually delivered was to remain in plaintiff until paid for by the Excelsior Springs Bottling Company or Ettenson. The defendant having bought said property from the Excelsior Springs Bottling Company or Ettenson with notice of plaintiff's ownership became liable to it in this action for the reasonable market value of same.

II. The case has been certified to this court by the Kansas City Court of Appeals on account of its ruling being contrary to...