Weir Plow Co. v. Porter

• Decision Date: 30 April 1884
• Citation: 82 Mo. 23
• Parties: THE WEIR PLOW COMPANY, Plaintiff in Error, v. PORTER.
• Court: Missouri Supreme Court

82 Mo. 23

THE WEIR PLOW COMPANY, Plaintiff in Error,

v.PORTER.

Supreme Court of Missouri.

April Term, 1884.

Appeal from Putnam Circuit Court.--HON. ANDREW ELLISON, Judge.

REVERSED.

A. W. Mullins for plaintiff in error.

The trial court erred in excluding part of the deposition of William B. Boyd offered by plaintiff. Story on Sales, § 400; Ober v. Carson, 62 Mo. 209. The contract constituted Harper the agent of plaintiff to sell the goods furnished under it. If there was a sale at all, it was incomplete and conditional that payment in a certain way would be offered and excepted, with the option remaining to plaintiff, to take back the goods and decline the sale. And as the payment was neither made nor offered to be made the title to the property never vested in Harper & Moore. Story on Sales, (3 Ed.) § 313 and note 2; Hilliard on Sales, (3 Ed.) p. 33; Griffin v. Pugh, 44 Mo. 326; Little v. Page, 44 Mo. 412; Ridgway v. Kennedy, 52 Mo. 24; Sumner v. Cottey, 71 Mo. 121; Couse v. Fregent, 11 Mich. 65; Brewster v. Baker, 20 Barb. 364; Marston v. Baldwin, 17 Mass. 606; Buckmaster v. Smith, 22 Vt. 203; Hotchkiss v. Hunt, 49 Me 213.

Smith & Krauthoff with H. D. Marshall for defendant in error.

The transaction had all the elements of a sale. Fish v. Benedict, 74 N. Y. 613; Benjamin on Sales, (3 Am. Ed.) 2; Gardner v. Lane, 12 Allen 39; 2 Schouler Per. Prop., 186, 190, 229. Warder v. Hoover, 51 Ia. 491; Blow v. Spear, 43 Mo. 406; Audenreid v. Randall, 3 Cliff. 99, 103; Mahler v. Schloss, 7 Daly 291; Marsh v. McPherson, 105 U. S. 709; McArthur v. Wilder, 3 Barb. 66; March v. Wright, 46 Ill. 487. The court correctly instructed the jury upon the question of a re-sale to the plaintiff. R. S., § 2505; Wright v. McCormick, 67 Mo. 426; Stern v. Henley, 68 Mo. 262; Mills v. Thompson, 72 Mo. 367. The contract between the parties was in writing, and it was not competent for witness Boyd to vary its terms by parol. Rodney v. Wilson, 67 Mo. 123; Jones v. Shaw, 67 Mo. 667; Chrisman v. Hodges, 75 Mo. 413; Foster v. Ropes, 111 Mass. 20; Tingham v. Eggleston, 27 Mich. 326.

MARTIN, C.

This was an action of replevin for fifteen turning plows and two sulky rakes of the Weir manufacture, valued at $328. The property was originally manufactured and delivered to one S. A. Harper, under the following contract, which in its terms included beam cultivators and rakes, but which was by a list attached thereto, extended to the plows claimed in the petition:

“This article of agreement made this 7th day of December, 1875, by and between the said Weir Plow Company * * of the first part, and S. A. Harper * * of the second part, witnesseth: That the Weir Plow Company agrees to manufacture and furnish to the party of the second part, aboard the cars at Monmouth, Ill., on or before the 20th day of February, 1876, twenty-four wood beam cultivators, etc. Party of the first part further agrees to sell the above named implements to no other than the party of the second part, during the year 1876, in the following territory, viz: Putnam county, Missouri. The party of the first part further agrees to pay the party of the second part $6.40 for selling each wood or iron beam cultivator, etc. Provided, each implement is sold at respective list prices before mentioned. All notes taken for the sale of the above implements to be made payable to Weir Plow Company, or order, bearing interest, from June 1st, 1876, or from date, at the rate of ten per cent. * * And provided further, that the party of the second part take no notes without their being signed by a resident land owner, or good and sufficient security, and guarantee their payment by indorsing them, waiving demand, notice of protest and non-payment. * * Said party of the second part agrees to sell the aforesaid number of implements as above stipulated, to keep all moneys and notes separate and apart from individual or company business, and to remit cash due each month for each implement sold for cash, to Weir Plow Company, at Monmouth, Illinois, and be ready to settle with the party of the first part by the 1st of July next, or at any time thereafter, when the party of the first part or their authorized agent may call upon the said party of the second part. * * The said party of the second part (Harper) agrees to represent each implement sold for cash, by the cash, at wholesale price, and each implement sold for note by note, at retail price, and indorsed as above stipulated, such notes as the party of the first part may designate sufficient in amount to pay for all implements not paid for cash, counting $22.75 for each wood beam cultivator, etc. The said party of the second part further agrees that should he neglect or fail to sell all of said implements by the 1st day July, 1876, to settle for those remaining on hand by giving his note, payable to the Weir Plow Company, or order, due November 1st, 1876, or indorse and turn over farmers' notes as provided for payment of implements sold on time, as the party of the first part may elect; said notes to bear interest at ten per cent from maturity, or, if the party of the first part should so elect, to store and keep well housed, free of charge, implements unsold, subject to the order of the party of the first part.

The party of the first part reserves the right to revoke this agency and take possession of said implements and the proceeds of those sold, at any time the said party of the second part fails to discharge his duties as agent.

In testimony whereof the parties set their hands, day and date first above mentioned.

J. A. TEMPLETON, for

WEIR PLOW COMPANY,

S. A. HARPER.

The property thus delivered to Harper was attached by the defendant, as sheriff, under a writ of attachment against said Harper and W. G. Moore his partner, and in favorof Morrison and Morrison, their creditors. The only issue in the case relates to the right of property at the time of the levy.

John A. Templeton, in a deposition read in evidence, testified that he was traveling agent for the plaintiff in 1875 and 1876, and until June, 1877. That in December, 1875, he made a contract, as such agent, with S. A. Harper, under which the property in question was delivered to said Harper and went into the possession of Harper and Moore. A copy of said contract is annexed to the deposition. Deponent further stated: “My impression is, there was a settlement on the back of the contract, marked exhibit “B,” made sometime in the month of August, 1876. I can't say the exact day. I think in the first of the month. That settlement was made by myself and Harper, at Unionville, Missouri. At this settlement I invoiced as the goods belonging to the Weir Plow Company, two sulky rakes,” and the plows in question, naming them. “These goods, when turned over to me were left in the possession of Mr. Harper, subject to the order of the Weir Plow Company. I next saw the goods in Mr. Marshall's barn where they had been placed by the sheriff, G. W. Porter, defendant.”

W. G. Moore, a witness for plaintiff testified: “I formed a co-partnership with S. A. Harper in the spring of 1876, I think in the month of March. We were engaged in the sale of agricultural inplements, and had a light stock of hardware, at Unionville, Mo. For all goods sold by us on time, of the manufacture of the Weir Plow Company, notes were made payable to the company. We received some of the notes for our commission for selling the goods. All notes were taken in the name of the company, and those we received for our commission were indorsed to us by the company. Most of the goods were sold on time. * * There was a settlement made with the company sometime in August, 1876, at which they agreed to take back all goods remaining on hand unsold. After that we held them subject to the order of the company. * * The house in which the goods were at the time of the levy, was in the possession of James...