Ungerer & Co. v. Louis Maull Cheese & Fish Co.

• Decision Date: 24 January 1911
• Citation: 134 S.W. 56,155 Mo. App. 95
• Parties: UNGERER & CO. v. LOUIS MAULL CHEESE & FISH CO.
• Court: Missouri Court of Appeals

134 S.W. 56

155 Mo. A. 95

UNGERER & CO. v. LOUIS MAULL CHEESE & FISH CO.

St. Louis Court of Appeals. Missouri.

January 24, 1911.

Rehearing denied February 7, 1911.

1. SALES (§ 166)—CONTRACTS—CONSTRUCTION —PERFORMANCE.

A contract for the sale and purchase of "gum tragacanth powdered," which is a distinct description of a particular article according to a known mercantile classification, is a contract for goods of the particular kind, and the designation is a condition going to the essence of the contract, and delivery of a substitute is a breach of contract.

2. SALES (§ 166)—SALE BY SAMPLE—OBLIGATION OF SELLER.

A sale by sample does not relieve the seller from the obligation assumed by him in selling by description, and, where the sample is an imitation not discoverable by mere inspection, the goods delivered may not be an imitation of what the contract calls for.

3. SALES (§ 119)—CONTRACTS—RESCISSION.

A buyer of goods for delivery in installments, who received a part of the installments, may revoke the order for future installments because the goods delivered failed to comply with the contract, though the goods subsequently tendered are equal in quality to the contract.

4. CONTRACTS (§ 265)—RESCISSION.

A rescission of a contract involves restoring the status quo of the parties.

5. SALES (§ 176)—CONTRACTS—RESCISSION— GROUNDS.

A buyer, having more than one reason for rejecting goods, does not, by assigning one reason, conclusively admit that there is no other, and he may justify his refusal to accept goods on another ground.

6. SALES (§ 166)—CONTRACTS—BREACH.

Where a buyer of goods for delivery in installments sought to justify a refusal to accept goods tendered because the goods previously delivered did not comply with the terms of the contract, the testimony of an expert chemist that the goods previously received were a substitute for the goods contracted for but of such close resemblance that a casual examination would not detect the defect, was admissible to prove a fact to defeat the seller's right to recover damages for refusal to receive the goods.

7. SALES (§ 405)—CONTRACTS—DAMAGES.

Where, in an action for a buyer's refusal to accept goods under a contract calling for delivery in installments, the buyer sought to recover damages for the seller's act in delivering a substitute, the testimony of an expert chemist that the goods delivered were a substitute for the goods called for of such close resemblance that a casual inspection would not detect the defect was admissible, though the buyer had sold the goods received at a profit.

8. SALES (§ 382)—CONTRACTS—BREACH—DAMAGES.

Where, in an action against a buyer for damages for refusal to accept part of goods sold, the seller sought to recover the difference between the contract price and the amount obtained at a public sale of the goods, the testimony of an expert chemist that goods delivered by the seller and received by the buyer under the contract were a substitute for the goods called for was admissible to determine whether the resale was a proper criterion of the market value of the goods not accepted; the seller claiming that the goods delivered by him and the goods sold because of the buyer's refusal to accept were of the same quality.

Appeal from St. Louis Circuit Court; George H. Williams, Judge.

Action by Ungerer & Co. against the Louis Maull Cheese & Fish Company. From a judgment for plaintiff, defendant appeals. Reversed and remanded.

Plaintiff sued defendant in the circuit court of the city of St. Louis to recover damages for defendant's failure to take and pay for 32 barrels of gum tragacanth as per contract.

It is admitted that the plaintiff and defendant entered into two contracts, the first on March 27, 1908, and the second on April 8, 1908, by each of which plaintiff agreed to sell to defendant, and defendant agreed to buy from plaintiff, 25 barrels of gum tragacanth powdered, or a total of 50 barrels under both contracts, at 26 cents per pound, f. o. b. New York; the goods to be ordered and taken by defendant, as wanted by it, by December 31, 1908, under the first contract, and by April 1, 1909, under the second. The plaintiff alleged in its petition, which contained two counts, that up to September, 1908, defendant took and paid for in the aggregate 18 barrels under the first contract (a barrel containing about 300 pounds), but had taken none under the second, and thereafter declined to order or take any more, and on December 31, 1908, repudiated both contracts and notified plaintiff that it would not order or take any more gum tragacanth. The petition further alleged that, upon the faith of the contracts, plaintiff had purchased sufficient gum tragacanth to meet them, and had retained the same up to and including December 31, 1908, and up to the time of filing this suit; that the market price of gum tragacanth in the city of New York on December 31, 1908, and from thence hitherto, has fallen to 12¼ cents per pound, and that plaintiff, after due notice to defendant and proper advertisement, had resold the 32 barrels in the city of New York at public sale realizing only 12¼ cents per pound. By the first count plaintiff seeks to recover $427.50 as the difference between the contract price and the amount received upon such resale for 7 barrels, and by the second count seeks to recover $1,127.50 as the difference between the contract price and the amount received upon the resale of 25 barrels.

For its answers and defenses to the two counts of the petition the defendant specifically denies all allegations except those relating to the making of the contracts, and states that it canceled and rejected the contracts and refused to accept further shipments on October 21st, instead of December 31st; that the 18 barrels shipped did not contain gum tragacanth powdered, as called for in the contract, but contained some powdered article, claimed by the plaintiff to be tragacanth powdered, but in reality a cheap, inferior substitute; that the cancellation and rejection and refusal were due to the failure of plaintiff to carry out its warranties and obligations to deliver gum tragancanth powdered, as called for in the contracts.

By counterclaim defendant seeks to recover of plaintiff $742.50 as the difference between the contract price of 18 barrels of real gum tragacanth, and the market price of the 18 barrels of alleged substitute, at the times and place of the shipments of the 18 barrels; it being alleged that they were shipped in installments between March 27th and September ____, 1908.

In its replies to the first and second counts of the petition and in its answer to defendant's counterclaim, plaintiff, in addition to general denials of the allegations of new matter, denies the substitution charged and asserts the genuineness of the article shipped, and then asserts that the 18 barrels of gum tragacanth were shipped under and in pursuance of the terms of the contracts; that defendant by receiving and accepting the barrels as containing gum tragacanth in accordance with and in pursuance of the contracts, without raising any question or objecting on the ground that the contents were not gum tragacanth as called for in the contracts, or were a cheap or inferior article or substitute of any kind for gum tragacanth, has estopped itself to deny or question that the article was gum tragacanth.

The evidence tended to prove that the plaintiff, a corporation dealing in gum tragacanth with its place of business in the city of New York, had a selling agent in St. Louis named D. B. Morris. Prior to March 27, 1908, it sent Morris a sample of the grade of gum it had in stock. Morris, it seems, had a personal arrangement with one Howland, dealer in ice cream materials, to furnish at 32 cents per pound all the gum tragacanth powdered the latter would need in his business during the season of 1908; the article being used as a filler in ice cream, much the same as gelatine. The defendant was a corporation doing business in the city of St. Louis. Morris visited defendant's president, and, by showing him the arrangement whereby Howland was to take his season's need of gum tragacanth, amounting, so Morris said, to 30 or 40 barrels of 300 pounds each, at 32 cents per pound, and by promising to sell the gum for defendant, probably to Howland, induced the defendant to enter into the contracts sued upon. The contracts were in writing and were each for "25 Bbls. Powd. Gum Tragacanth." The first one, but not the second, stipulated that the article was to be "identical with sample sent to Morris." The evidence on the part of the plaintiff tended to prove that plaintiff dealt only in "Indian gum," which its witness designated as a grade of "gum tragacanth." Between the time of making the contracts and some time in September, 1908, the plaintiff shipped to the defendant 18 barrels of "gum tragacanth powdered," as its witness called it. These were paid for by the defendant at the contract price of 26 cents per pound. Defendant had an arrangement with Morris whereby he was to dispose of the gum, apparently to Howland, for 32 cents per pound, and was to divide the difference, or 6 cents per pound, between defendant, Morris, and one Larremore, whose connection with the matter does not appear. Defendant's officers personally took no part in disposing of the 18 barrels. It paid for them and held them in its warehouse while Morris disposed of them to Howland. Thirteen of the barrels...