VoGel v. Gast

• Decision Date: 22 December 1885
• Citation: 20 Mo.App. 104
• Parties: FRANK O. VOGEL, Respondent, v. AUGUST GAST ET AL., Appellants.
• Court: Missouri Court of Appeals

20 Mo.App. 104

FRANK O. VOGEL, Respondent,

v.AUGUST GAST ET AL., Appellants.

St. Louis Court of Appeals, Missouri.

Dec. 22, 1885.

APPEAL from the St. Loius Circuit Court, AMOS M. THAYER, Judge.

Reversed and remanded.

KLEIN & FISSE, for the appellants.

B. SCHNURMACKER, for the respondent.

THOMPSON, J., delivered the opinion of the court.

This action is for damages for the breach of a contract, whereby the defendants agreed to manufacture for and deliver to the plaintiff certain books at an agreed price. The breach alleged is, that after the defendants had manufactured the books, as agreed, and the plaintiff had paid a portion of the agreed price, he tendered the balance, but the defendants, nevertheless, refused to deliver them. The answer, among other things, admitted the making of the contract, the manufacture by the defendants of the books, and the partial payments made by the plaintiff, as alleged in the petition, but denied that he had ever tendered the balance of the purchase money as alleged. On the contrary the answer averred that, after the defendants had manufactured the books as agreed upon, and had notified the plaintiff of their readiness to deliver them upon the payment of the balance of the agreed price, the plaintiff had left them in store with the defendants, and that they had been burned up in a fire which had consumed the defendants' establishment. The plaintiff had a verdict and judgment.

Leaving out of view other elements of the case presented by the pleadings and the evidence, it is sufficient to say that the substantial contest at the trial was, whether, after the books had been manufactured as called for by the contract, the plaintiff had, on the seventh day of March, 1884, tendered to the defendants what remained due of the contract price. The only dispute as to what remained due arose in this way: the plaintiff had been introduced to the defendants by one Eisele, to whom the defendants had agreed to pay a commission of ten per cent. for procuring for them the plaintiff's order. After the books had been manufactured, Eisele had requested of the defendants the payment of this commission; they had admitted their obligation to pay it, and had told him that they would pay it as soon as the plaintiff had completed the payment of the price agreed upon for the manufacture of the books. Thereafter, according to the testimony of the plaintiff and Eisele, which is not contradicted, Eisele, being at the plaintiff's house on a visit, and hearing the plaintiff say that he was hard up, told the plaintiff that the defendants had agreed to give him, Eisele, a commission of ten per cent. upon the amount which the plaintiff was to pay the defendants for manufacturing the books, and that he, Eisele, would give his commission to the plaintiff. The plaintiff, on the fifth of March, 1884, notified the defendants orally that Eisele had given the plaintiff this commission, and that he should expect them to deduct the amount of the sum from the balance which he owed them for manufacturing the books. On the seventh of March he called upon them, offered to pay them this balance, less the commission, and requested them to deliver to him the books. They declined to accede...