Universal Paper Products Co. v. R. E. Funsten Co.

• Citation: 285 S.W. 516
• Decision Date: 01 June 1926
• Docket Number: No. 18877.,18877.
• Parties: UNIVERSAL PAPER PRODUCTS CO. v. H. FUNSTEN CC.
• Court: Court of Appeal of Missouri (US)

285 S.W. 516

UNIVERSAL PAPER PRODUCTS CO. v. H. FUNSTEN CC.

No. 18877.

St. Louis Court of Appeals. Missouri.

June 1, 1926.

Rehearing Denied June 25, 1926.

Appeal from St. Louis Circuit Court; Franklin Miller, Judge.

Action by the Universal Paper Products Company against the R. E. Funsten Company. From the judgment for plaintiff on his complaint and defendant's counterclaim, defendant appeals. Affirmed.

M. N. Sale, of St. Louis, for appellant. Gustave A. Stamm, of St. Louis, for respondent.

NIPPER, J.

Plaintiff below, who is respondent here, is engaged in manufacturing, among other things, paper cartons, at its factory in Clyde, Ohio. The defendant is engaged in business in the city of St. Louis. This action is brought by plaintiff against defendant to recover the contract price of 50,000 cartons, manufactured by plaintiff, and shipped to defendant at St. Louis. We will state briefly the facts leading up to this controversy:

The action is based upon a contract entered into between plaintiff and defendant, by the terms of which the plaintiff agreed to manufacture, sell, and deliver to defendant, 50,000 14-ounce cartons, to be embossed and printed in four colors, namely, red, black, brown, and gold. Defendant furnished plaintiff samples, and the written contract as finally executed between the parties provided that this work was to be done as "per samples inclosed." There was considerable correspondence between these parties with respect to the manufacture and shipment of this particular lot, the correspondence as to this particular order beginning about April 11, 1921, and ending about a year later. The shipment was to be made, according to the original contract, within 60 days, but this part of the contract was waived by defendant, and it is not now an issue in the case. It appears that for many years defendant had been purchasing cartons of this kind, in which were packed dates for the retail trade, from another company in New York, but plaintiff, through its representative, solicited this order from the defendant. Throughout all the correspondence between the parties, and this is especially true with reference to defendant's letters to plaintiff, both before and after the final consummation of the agreement, it is insisted that the cartons furnished by the plaintiff were to be as near like the sample furnished by defendant as possible. In plaintiff's letter to defendant, dated April 11, 1921, plaintiff stated that its carton "will be equal to the cartons given us"; and in another sentence it is stated that plaintiff understands that the cartons "must be just as good and just as good looking as the samples." And in reply to this the defendant stated that it wanted cartons "just as good as the samples which we submitted to you," and that it would not consider taking anything that was not as good as the samples. Replying to this, the plaintiff stated that it would give the defendant a carton "equivalent of what you have been receiving, in printing, embossing, and other workmanship." The written contract was dated April 23, 1921. There was further correspondence with respect to this shipment, defendant urging plaintiff to hurry the shipment along, and plaintiff explaining the delays in making the shipment, and promising to hurry the matter along as fast as possible. Plaintiff sent different samples of these cartons, in the course of the preparation and manufacture, for defendant's O. K., and on August 15, 1921, defendant wrote plaintiff the following letter :

"Universal Paper Products Co., Chicago, Illinois—Gentlemen: "We are in receipt of yours of the 13th; also proof of our stuffed date cartons, which we find to be entirely satisfactory.

"We have O. K.'d these proofs and mailed them back to you by first-class mail and we sincerely hope that you will now proceed with this job without further delay as we are being badly handicapped by not having these cartons and not only have needed them for several weeks to use as samples, but we will need them on September 1st to begin to fill our orders which we have taken for shipment on that date.

"Yours very truly,

"R. E. Funsten Dried Fruit & Nut Co. "EMF :EB."

It appears, however, that no proof of the final and finished carton had been sent to defendant; that is, no carton after the embossing had been made complete. Defendant had purchased other cartons from plaintiff in addition to the ones in controversy. On or about the 13th of September, 1921, plaintiff shipped 1,200 of the 14-ounce cartons to defendant at St. Louis. This shipment was made by express, and reached St. Louis about the 15th or 16th of the same month. About the 20th of September, 1921, defendant sent one of its stockholders, who was a salesman for the company, a Mr. R. F. Funsten, to the factory of plaintiff at Clyde, Ohio. The object and purpose of R. F. Funsten's visit to plaintiff's factory is in dispute. Defendant contends that it sent him to the plaintiff's factory for the purpose of ascertaining why a certain shipment of 4-ounce cartons had not been made, which shipment plaintiff had been promising to make for several weeks prior to that date. The plaintiff's contention is that this Mr. Funsten was the general agent of the defendant, and inspected the 14-ounce cartons, as well as the 4-ounce; that he spent something like two or three hours at the factory, examined a portion of each kind of the cartons, and requested that they be shipped at once, and that, therefore, defendant is bound by his action.

R. F. Funsten testified that his brother had called him over the telephone and directed him to go to plaintiff's place of business at Clyde, Ohio, and make inquiry concerning the shipment of the 4-ounce cartons; that he stayed at the factory probably two hours, and went through the factory and saw a part of the 14-ounce cartons; that he knew that plaintiff was going to load them that day, and that they were loading 14-ounce cartons into the car, and that he told plaintiff's representative, Mr. Leach, that he wanted to get the 4-ounce cartons shipped as quickly as possible; that he went there to get delivery of the 4-ounce cartons, but that he knew they were shipping the whole 50,000.

Mr. Leach testified for the plaintiff that Funsten came to his office on the date above mentioned and stated that he had been authorized by his firm to come and see what could be done toward hastening the delivery of the carload of cartons that was yet to be shipped. He says the 14-ounce cartons had been completed and packed ready for shipment at that time; that some of the packages were opened, as Mr. Funsten wanted to see how they looked. In opening these packages, he says they examined some of the 14-ounce, some of the 4-ounce, and others; that after Funsten looked them over he insisted that plaintiff make immediate delivery. A carload was loaded, and shipment started that day.

Under date of September 23, 1921, defendant wrote plaintiff that it was very anxious for the car to arrive, as they wanted to see the 14-ounce cartons, because the 1,200 that had already been sent were not at all satisfactory, and if the 50,000 were like the 1,200 it could not consider accepting them as a delivery in accordance with the contract. Upon receipt of this car, and on the 27th of September, 1921, defendant advised plaintiff that it could not use the 14-ounce cartons. There was further correspondence between the parties, plaintiff insisting that the cartons were in accordance with the contract, and defendant that they were not; and defendant further asked plaintiff for instructions as to what it wanted done with this lot of 50,000 cartons. The parties were unable to get together, and the result was this lawsuit.

The evidence of defendant discloses that it was compelled to go out and purchase these 50,000 cartons elsewhere and pay a greater price, for which it claimed damages by way of counterclaim. The verdict was in favor of the plaintiff for $1,150, with interest, and also in favor of the plaintiff on defendant's counterclaim. The court gave four modified instructions requested by plaintiff, and modified and gave four instructions on behalf of defendant. Most of these instructions are attacked by plaintiff on appeal, and it will be necessary to set some of them out in full. This is especially true with respect to instruction No. 1, which defendant attacks from several angles. This instruction is as follows:

"The court instructs the jury that, if the jury finds and believes from the evidence in this cause that the contract offered in evidence for the manufacture and delivery by plaintiff to defendant of the 50,000 cartons therein referred to was entered into by plaintiff and defendant, and if the jury further find that, pursuant to said contract, plaintiff manufactured 51,500 on said order for said 50,000 cartons, and that said cartons were substantially the same as those ordered and equal to the samples submitted therefor, and that plaintiff, at the special request of defendant, delivered 1,200 thereof to defendant, by express, on September 13, 1921, which were accepted by defendant, if you find they were so accepted, and if the jury finds that the remainder of the fifty-one thousand five hundred cartons were shipped to defendant by plaintiff on September 20, 1921, and that they were substantially the same as the 1,200 cartons accepted by defendant, and equal to said samples, then the plaintiff is entitled to recover the contract price thereof, at $23 per thousand, for 50,000 cartons, a total of $1,150."

The words italicized are the modifications and additions made by the court to the original instruction as requested by plaintiff.

Instruction No. 2 told the jury that, if the cartons were "made substantially equal to the sample furnished," their verdict should be for the plaintiff on plaintiff's cause of action.

Instruction No. 3 told the jury that, if it was found that R. F. Funsten was the duly authorized...