Glasgow Milling Co. v. Burgher

ELLISON, J. Plaintiff’s cause of action, as stated in the petition, is founded on its sale to defendant of a lot of flour and meal for the sum of $222.75 and that defendant afterwards refused to receive or pay for it. The trial court gave a peremptory instruction to the jury to return a verdict for the plaintiff and the defendant has brought the case to this court. It appears that defendant is a merchant at Coats-ville and plaintiff is a milling company at Glasgow, Missouri; these places being about eighty miles from each other and that they are connected by the Wabash railway. Defendant made the following written order for the flour: “Coatsville, Missouri, 11 — 17—03. . “Please ship me 110 sack Crown High Pt. 40 sack Extra Pt., 30 sack Extra Fancy. 30 sack Eagle, 25 sacks of bolted meal. SHIP AT ONCE. “J. Burgher.” — 18 — Plaintiff then, on November 24, 1903, undertook to deliver to defendant at Ooatsville the flour and meal and to pay the freight thereon; that is to say, defendant was to make the actual payment of the freight, the plaintiff deducting the amount thereof ($14.81) from the total sum for which the articles, were sold and demanding of defendant only the balance ($207.94) remaining after such deduction. The flour did not get to Coats-ville for several days. The defendant becoming annoyed at the delay, informed the agent of the railway company that he was compelled to go away and unless it got in by the first of December he could not receive it until his return. On his return on the fourth of that month as he was about to receive it, the agent demanded two dollars of him by way of demurrage. This he refused to pay. Afterwards, he Avas informed that the raihvay would waive collection of demurrage. Defendant having in the meantime learned that the flour was damaged and unmerchantable refused to' receive or accept' it. Several weeks afterwards the plaintiff had the flour shipped back to it at Glasgow. We are satisfied that the judgment should be reversed. The property involved was above the price of thirty dollars and since it was never delivered to defendant and no earnest money was paid, the sale should be evidenced by Avriting in order to be Aalid under the Statute of Frauds. Plaintiff introduced the written order aforesaid over defendant’s objection that it was not sufficient to take the case out of the statute. This writing omits any price and therefore does not state a contract. An omission of price is fatal. [Kelly v. Thuey, 143 Mo. 435; Peycke v. Ahrens, 98 Mo. App. 456; Martin v. Mill Co., 49 Mo. App. 29.] Defendant’s answer, while containing a general denial, did not plead the Statute of Frauds, and plaintiff urges that not being pleaded it cannot be invoked in aid of defendant’s defense. We are of opinion that de — 19 — fendant having denied the contract of sale alleged by-plaintiff need not go further and specifically set up the statute. The denial of the contract justifies him in demanding of plaintiff legal proof of it and to insist that the Statute of Frauds nullifies the proof offered. We had occasion to examine the question in Van Idour v. Nelson, 60 Mo. App. 523, wherein we stated the rule as herein written. That case has been approved a number of times. [Royal Remedy v. Gregory, 90 Mo. App. 53; Beckmann v. Mepham, 97 Mo. App. 161.] And is in exact accord with the Supreme Court. [Boyd v. Paul, 125 Mo. 9.] Notwithstanding the writing introduced by plaintiff was not sufficient under the statute, it might nevertheless be pieced out by other writings connected therewith and concerning the same subject-matter, showing the price. But while other writings were referred to orally, they were not introduced and we find nothing which properly shows a price agreed upon from a legal standpoint. Another objection, which counsel for defendant urges against the judgment, is that the evidence discloses a sale of the flour to be delivered to defendant at Coatsville and that such delivery should have been made within a reasonable time. The evidence in plaintiff’s behalf does malee out a case for delivery to defendant at Coatsville. Plaintiff’s bill of the flour shows this and his oral testimony at the trial concedes it. There being no specific time mentioned, a reasonable time to make the delivery would be implied by the law. There was evidence strongly tending to show that the time of arrival at Coatsville was an unreasonable time, considered in connection with the distance between the points of shipment, and for that reason alone defendant would have been justified in refusing to receive or accept the flour. But in addition to this, the sale was manifestly a — 20 — sale of merchantable flour. The plaintiff can be held, on proper plea to that effect, on an implied warranty that the flour should be delivered in a merchantable condition. [Atkins Bros. v. Grain Co., 119 Mo. App. 119.] The evidence conclusively showed that after the flour arrived at Coatsville it was found to be in badly damaged condition. Sacks were torn and covered with dirt. The evidence tended to show that it had been loaded in a dirty car. Witnesses stated that there were appearances about the car and the flour which indicated that it had been in a wreck. We are satisfied that the evidence, taken as a whole, tended to show that the flour arrived at Coats-ville (where plaintiff was to deliver it) in an unfit and unmerchantable condition. There were several other objections taken to the judgment to be found in defendant’s brief, but we pass to one which, if there was nothing else, we find to be fatal to plaintiff’s case. Defendant set up in his answer his refusal to receive or accept the flour and that plaintiff had taken it back to Glasgow and disposed of the same. The evidence conclusively shows that plaintiff did take the flour back, not to keep and store for the defendant, but as its own. It shows that it accepted defendant’s refusal of the flour and only made claim for the freight it paid out in shipping the flour both ways between Glasgow and Coatsville. When plaintiff took and accepted the flour back as its own, it could not afterwards undertake to put the title to the property into defendant without his consent and sue him for the purchase price for goods sold. It will not’ do to urge here that a vendor, on the vendee’s wrongful refusal to accept goods sold to him, has a right to take them and store them for the vendee. No such case was made by the plainti ff. The petition states a simple case of a sale and delivery at an agreed price; and the evidence in plaintiff’s behalf contains merely' a statement that it had “the flour on hands subject to his order, if — 21 — he wants it.” But there is no suggestion that it was kept and had been kept as defendant’s property, or that defendant had any knowledge of it being so kept. On the contrary, plaintiff wrote the defendant that it had taken the flour back, which had been “shipped to you and returned to us after your refusal to take it,” and only made claim for the freight and $20 damages, which latter sum plaintiff was willing “to let pass,” if defendant would settle the freight. It is manifest that there can be no recovery in the case and the judgment will consequently be reversed.