Woodson v. Leo-Greenwald Vinegar Co.

• Decision Date: 04 May 1925
• Docket Number: No. 15322.,15322.
• Citation: 272 S.W. 1084
• Parties: WOODSON v. LEO-GREENWALD VINEGAR CO.
• Court: Missouri Court of Appeals

272 S.W. 1084

WOODSON v. LEO-GREENWALD VINEGAR CO.

No. 15322.

Kansas City Court of Appeals. Missouri.

May 4, 1925.

Rehearing Denied May 25, 1925.

Appeal from Circuit Court, Buchanan County; Thos. B. Allen, Judge.

Action by Charles R. Woodson against the Leo-Greenwald Vinegar Company. Judgment for plaintiff, and defendant appeals. Reversed and remanded for new trial.

See, also, 264 S. W. 674.

Culver & Phillip, of St. Joseph, for appellant.

Ben J. Woodson and Strop & Mayer, all of St. Joseph, for respondent.

ARNOLD, J.

This is an action upon an account stated, whereby plaintiff seeks to recover the sum of $512.71 for two carloads of apples. Among other activities plaintiff owns and operates an apple orchard near Agency, Mo. Defendant is a corporation engaged, among other things, in the manufacture of cider and vinegar at St. Joseph, Mo.

The petition alleges that plaintiff entered into a contract with defendant, whereby he agreed to sell, and defendant agreed to buy, all of plaintiff's bulk cider apples for the year 1918, at $1.25 per 100 pounds f. o. b. Agency, Mo.; that pursuant thereto plaintiff placed on board cars at Agency two carloads of apples, one containing 25,920 pounds and the other 19,925 pounds, and consigned them to defendant at St. Joseph, Mo.; that at the contract price the apples amounted to $576; that on the arrival of the cars defendant claimed a deduction of $7.50 for 600 pounds shortage, and $2.85 for excess freight charge, because the car was loaded to less than minimum weight. These deductions were allowed by plaintiff.

The petition further alleges:

"Plaintiff further states that at said time or shortly thereafter, the defendant claimed that said two carloads of apples were of inferior quality, and that before it would accept said apples and pay for same, it was entitled to a reduction in price; and thereupon it was agreed between plaintiff and defendant that, in addition to the two items of deduction on account of freight and shortage of weight, as above stated, the defendant would be entitled to and was allowed a deduction for 4,000 pounds of apples at the contract price of $1.25 per hundred weight, which deduction, on account of the alleged claim that said apples were inferior, amounted to the sum of $50. Plaintiff states that all the above matters were agreed to by him, and the defendant agreed to pay the balance of the purchase price, to wit, $512.71, after making the proper deductions as above stated. Plaintiff states that the above apples were delivered and accepted by the defendant under the facts as herein stated and under the agreement as above set forth."

The answer was a general denial, and upon the pleadings thus made the cause went to trial to a jury.

Plaintiff testified that on October 15, 1918, he sold defendant, over the telephone, what apples he had, and that he shipped them on October 15th and 16th; that thereafter Mr. Leo, representing defendant, called him by telephone to come to the plant and look at the shipment; that he went with Mr. Leo, examined the apples, and found about 10 per cent. of them damaged and not sound cider apples; that Leo said about 4,000 pounds were thus damaged, and that he would so report to the factory. Plaintiff then went to the uptown office of defendant and there met Mr. Alex Leo, and the latter said his brother had reported there should be a deduction of 4,000 pounds; that plaintiff replied that 4,-000 pounds at 10 cents per cwt. should be deducted, and that Mr. Leo then called Mr. Greenwald and another officer of the corporation over the telephone and said to them, "Dr. Woodson is here and he is wiling to take either a deduction of 4,000 pounds or 10 cents off;" that Leo then turned to plaintiff and said, "That is all right; take the 4,000 pounds off. Mr. Greenwald says he has talked to the man at the plant."

Plaintiff stated that he and Leo then figured it up and found the shipment was 600 pounds short through an error by the man who weighed the apples at Agency, and, at $1.25 per 100 pounds, this shortage amounted to $7.50; that there was also an overcharge in freight due to lack of the minimum weight in one of the cars, and also a $50 deduction was figured off because the Jonathan apples in the shipment were in bad shape, and that left $512.71 due plaintiff on the shipment; Leo then turned to some one in the office and asked,;"Have you any checks signed in blank?" that a lady from another room answered, "No checks signed in blank." Leo then said, "Doctor, Mr. Greenwald will be back in 15 or 20 minutes; if you will wait, I will make you a check." Plaintiff replied that he was in a hurry and could not wait, and said, "Just make me the check this evening and mail it to me;" to which Leo replied, "We will make it this evening and mail it to you and you can get it in the morning."

On behalf of defendant, Haskell Leo testified that plaintiff called at the plant to see the two cars; that witness showed them to him, and plaintiff discussed the proposition of figuring 4,000 pounds loss, but that witness made no comment; that after examining the apples the witness reported their condition to his brother, Alex Leo, at their uptown office. Defendant then offered to prove by witness that rotten apples are not fit to make cider or vinegar, and are not used for any purpose; that witness found the apples rotten. The ruling of the court on this offer is as follows:

"Since this suit is a suit on a stated account, the agreement to pay the first amount as the balance of settlement, the court holds it is immaterial as to whether the apples were rotten, or as to whether they could make cider out of rotten apples."

Counsel for defendant then explained to the court that the offer was not made "because we contended that if any account stated was had the defendant could escape liability by showing that the apples were rotten, but as a circumstance to show the improbability of the defendant making any such contract, and in support of its contention, and as a circumstance to show that no such settlement was actually ever made." The court sustained plaintiff's objection to the offer. Defendant then offered to prove by the witness that upon examination the apples in the cars were found to be rotten and full of worms, being absolutely unfit for the manufacture of cider or vinegar, or for human consumption; that the vinegar company refused to receive them, and " that they were dumped by the railroad company. Upon objection by plaintiff this offer also was refused by the court. The same proof was offered by defendant in the examination of other witnesses, but in each instance the offer was refused.

Alex Leo, for defendant, testified that plaintiff called him over the telephone and stated that he had two cars of sound cider apples for sale, and that the witness offered him $1.25 per cwt. f. o. b. plaintiff's station, with privilege of inspection, and that the offer was accepted; that witness received a report from Haskell Leo from the plant that the apples were in bad condition on arrival; that he immediately called plaintiff and suggested he go down to see them as they were in...