United States F. & S. Book Co. v. Montrose Cloak & S. Co.

• Decision Date: 20 December 1919
• Docket Number: No. 20509.,20509.
• Citation: 218 S.W. 867
• Court: Missouri Supreme Court
• Parties: UNITED STATES FASHION & SAMPLE BOOK CO. v. MONTROSE CLOAK & SUIT CO.

218 S.W. 867

UNITED STATES FASHION & SAMPLE BOOK CO. v. MONTROSE CLOAK & SUIT CO.

No. 20509.

Supreme Court of Missouri, Division No. 1.

December 20, 1919.

Rehearing Denied March 2, 1920.

Appeal from St. Louis Circuit Court; Benj. J. Klene, Judge.

Action by the United States Fashion & Sample Book Company against the Montrose Cloak & Suit Company. Judgment for plaintiff, and defendant appeals. Affirmed.

F. A. & L. A. Wind and Shepard R. Evans, all of St. Louis, for appellant.

Abbott & Edwards, of St. Louis, for respondent.

RAGLAND, C.

Defendant was engaged in ladies' tailoring in the city of St. Louis. Its method of doing business was this: It furnished to each of its customers, country merchants, a fashion and sample book in which there was displayed on certain pages different styles of ladies' suits and other garments, and on other pages were attached sample pieces of the cloth from which such garments would be made. The small pieces of cloth were called "swatches." Both the styles and the swatches were lettered or numbered so that by means thereof a customer in ordering a suit by mail could designate both the style and material desired. To prevent errors it was necessary that the lettering and numbering of the styles and the swatches, respectively, in the books furnished customers, should in all respects correspond with that in the book kept by the defendant at its factory.

The plaintiff, who was engaged in the manufacture and sale of fashion and sample books, in the city of Philadelphia, some time in December, 1913, agreed to make and deliver to defendant, according to the designs and specifications submitted by the latter, 250 of such books for the sum of $1,125. February 2, 1914, two copies of the book, made by plaintiff pursuant to such agreement, were completed, and one was sent to defendant for examination and approval. Defendant immediately wired its approval and acceptance, and thereupon plaintiff completed the remaining 248 books and forwarded the 249 to defendant in three shipments, the last one on February 10, 1914. On that date it also rendered its bill for $1,125.

Each of the books when received by defendant was inclosed in a corrugated paper box suitably for mailing, and all of them were mailed by defendant to its customers without it ever having removed them from the wrappers.

This suit is to recover the contract price of the books. As a defense to plaintiff's action, defendant answered that the books furnished by plaintiff were valueless because not according to contract, in that the pasting of samples of the cloth in the books was not uniform, the letters and figures designating a given sample being different in one book from that in another, and that by reason thereof defendant in conducting its mail order business was caused to make for its customers garments of cloths different from that ordered by them. Defendant pleaded the same matter by way of counterclaim, alleging that by reason thereof it was compelled to, and did, discontinue its mail order business, and that such discontinuance resulted in the loss of the money expended in preparing to engage in such business to the extent of $2,544.47, in the loss on cloth manufactured into readymade garments, for which it reasonably expected to receive orders, to the extent of $5,434.90, in loss on cloth bought to make into garments, for which it reasonably expected to receive orders, to the extent of $2,603.35, in the loss of profits reasonably to be expected during the spring of 1914, to the extent of $8,973.32, and in the loss of its established business of the value of $10,000, for all of which it asked judgment against plaintiff. The reply was in effect a general denial.

The evidence for the plaintiff tended to show that all the books it made and delivered to defendant were exactly like the sample book submitted to and approved by the latter, corresponded therewith in every particular, including the lettering and numbering of the styles and swatches. On the part of the defendant it tended to show that the numbering of the swatches in some of the books mailed its customers was not the same as in the book it retained at its factory and from which it obtained the necessary information in filling orders, and that it was compelled to and did discontinue the mail order business on that account. Before defendant discontinued its mail order business, about April 15, 1914, it had filled 112 such orders. Out of this number there were 6 complaints that the garments furnished were not made of the cloth ordered. The depositions of 5 of these 6 of defendant's customers, or their clerks, were read by it in evidence. Attached to each of 4 of these depositions was the original letter that the deponent had written the defendant in returning a garment. Each of the letters, in effect, stated that the garment was being returned because not made of the cloth designated in the order. The depositions were but amplifications, severally, of the statements contained in the letters. The court sustained plaintiff's objection to the offer of these letters in evidence on the ground that they...