Williams v. Emerson-Brantingham Implement Co.

• Decision Date: 13 November 1917
• Docket Number: No. 1936.,1936.
• Citation: 198 S.W. 425
• Parties: WILLIAMS v. EMERSON-BRANTINGHAM IMPLEMENT CO.
• Court: Missouri Court of Appeals

198 S.W. 425

WILLIAMS v. EMERSON-BRANTINGHAM IMPLEMENT CO.

No. 1936.

Springfield Court of Appeals. Missouri.

November 13, 1917.

Appeal from Circuit Court, Oregon County; E. P. Dorris, Judge.

Action by Dan Williams against the Emerson-Brantingham Implement Company. From a judgment for plaintiff, defendant appeals. Reversed.

L. P. Norman, of Alton, and Wright Bros., of Springfield, for appellant. Lamar & Lamar, of Houston, for respondent.

STURGIS, P. J.

The defendant in this case is a manufacturer and vender of farm machinery, with a branch house at Springfield, Mo., covering the territory where plaintiff resides. By this suit plaintiff sought and obtained a judgment for damages because of defendant's failure to comply with an alleged contract of sale, whereby defendant sold and agreed to deliver to plaintiff at Thayer, Mo., a certain threshing machine and engine, with appurtenances. The petition alleges that on June 1, 1915, plaintiff purchased from defendant, through its agent, this threshing outfit for the sum of $2,701.20; that defendant agreed to accept in part payment an old threshing outfit then owned by plaintiff at $1,301.20, which was then turned over to defendant; that plaintiff agreed to pay the balance of the purchase price, $1,400, in cash or notes as per the written agreement; that said machinery was to be delivered at Thayer, Mo., by June 10, 1915, f. o. b. The petition then alleges acceptance of the contract and a compliance therewith by defendant to the extent that the machinery was shipped to Springfield, Mo., but that defendant refused to deliver same to plaintiff, except on payment of an additional $200, which plaintiff refused, and no delivery was made. The plaintiff alleged willingness and ability to comply with the contract at all times, and claimed damages for loss of profits to him during the threshing season of 1915. The defendant admits that no threshing machine was delivered to plaintiff, and the controversy turns on whether there was a completed contract between the parties.

To support his cause of action, thus summarized, plaintiff introduced an order for this machinery, signed by himself and delivered to the soliciting agent of the defendant, the material parts of which are as follows:

"Original of this order to be forwarded to Emerson-Brantingham Imp. Co., and is taken subject to its approval.

                                   "Alton, Mo., June 1, 1915
                

"Emerson-Brantingham Imp. Co., Rockford, Ill. (a corporation hereinafter designated as the company): You will please ship to the undersigned (hereinafter designated as the purchaser), at Thayer, county of Oregon, state of Missouri, in care of E. B. I. Co., by route you think best and cheapest, if possible on or about July 10, 1915, the following described machinery, with appurtenances, viz.: [Here follows a description of the machinery.] The company shall not be liable for failure to ship the machinery ordered, or any part thereof, nor for delay in shipment or transportation, and acceptance by purchaser is a full waiver of any claim for delays in filling this order, arising from any cause. Purchaser agrees to receive same on board cars, pay the freight and charges from factory where made, and at the same time settle for said machinery in cash or notes in the sum of $1,400, and deliver to the company the following described chattels: [Here follows a description of machinery.] Notes to be made payable to the order of Emerson-Brantingham Implement Co., on its blanks, and made payable at Doniphan State Bank, in Doniphan, Missouri. And in the event said machinery shall have been tendered to the purchaser at the place of delivery and the purchaser shall refuse to accept the same and make settlement therefor, this order shall, at the option of the company, stand as the purchaser's written obligation, and have the same force and effect as notes and mortgages for all sums not paid in cash. The purchaser acknowledges having received a copy of this order, and that no promises, representations, or agreements have been made except as herein contained. This order is taken subject to approval by the company at Rockford, Illinois, or by its branch house manager for the territory in which this order is given, and notice of such approval and acceptance, is hereby expressly waived by the purchaser."

The plaintiff admits that the old machinery, which the defendant was to accept in part payment, was not delivered to or taken possession of by defendant, but remained and yet remains in plaintiff's possession. Nothing has been paid by the plaintiff. Plaintiff testified that, after signing and delivering the order to defendant's soliciting agent on June 1st, he heard nothing from the defendant in regard thereto until he received addressed to him, the following, letter, dated June 30, 1915, at Springfield, Mo.:

"Dear Sir: We placed order for your engine and separator to be shipped from our factory and have received it at Springfield, but the parties we are selling the old machinery to stated that it was not worth the amount asked and refused to take it, and we could not take the old machinery in trade at the price the order is written, unless we could sell the old machinery. We want your business, and will make you the best exchange price that we can make and take in trade the old, or sell you a new outfit without trading. The best exchange price we can make and take in trade the old engine and separator is $1,600 difference, or will sell you the engine and separator without considering the trade. We expected the parties to take the old machinery, but when they looked at it they would not give us what we had to have to get our investment out of it. Kindly let us hear from you further and oblige. We remain, yours very truly, Emerson-Brantingham Imp. Co., D. Atkins, Mgr."

On receipt of this letter plaintiff says he called defendant's office at Springfield by telephone, but received no satisfaction, except that defendant "couldn't accept the order without the $200." Plaintiff then went to Springfield a few days later to see about the matter, and testified that the manager of the Springfield branch house then told plaintiff that the old machinery the company was to take over was not as good as they thought, and they had not been able to sell it to a man that they thought would take it; that plaintiff asked why they did not ship the machine down there, and he said he couldn't do that without the $200; that they talked about it one way and another, but defendant's manager would not give up to ship to plaintiff, and plaintiff went home. It was further shown that a threshing outfit such as plaintiff had ordered was there at the Springfield agency and had a tag on it with plaintiff's name thereon; that defendant's manager tried to get plaintiff either to take another cheaper outfit, or pay all in cash or notes for this one, or trade in plaintiff's machinery at a difference of $1,600.

On the part of plaintiff the court gave this instruction:

"The court instructs the jury that if you find and believe from the evidence that plaintiff was ready and willing to carry out and fully comply with his order and agreement and receive said new machinery, and defendant failed and refused to carry out its part of said order and agreement, and failed and refused to ship said new machinery after said order was accepted, if you find said order was accepted, and that by reason thereof plaintiff lost profits in threshing grain for the season of 1915, then you should find the issues for the plaintiff and assess his damages," etc.

For defendant the court instructed that the burden was on plaintiff to prove that defendant accepted the order and that the acceptance was unconditional. The defendant insists that its demurrer to the evidence should have been sustained, and that there is no evidence to sustain a finding that defendant accepted this order so as to make a complete and binding contract.

Plaintiff concedes that an order is not a contract, and that to become such it must be unconditionally accepted. Batavia v. St. Louis S. W. R. Co., 126 Mo. App. 13, 103 S. W. 140; Union Service Co. v. Drug Co., 148 Mo. App. 327, 128 S. W. 7; Sarran v. Richards, 151 Mo. App. 656, 132 S. W....