P. C. Thompson & Co. v. Massey

Bond, J. S TATE ¡VTE N T Plaintiffs, who are soap dealers living in Philadelphia, through their general agent, sought to sell their wares to the Headley Grocer Company, a business corporation, located at Springfield, Missouri. The goods in question were new in that market, and the president of the Headley Grocer Company refused to buy outright upon the proposal of plaintiff, but agreed to take certain of their goods upon the terms expressed in the following memorandum : “December 30. P. C. Thompson & Co.: 5 oases Quaker soap lye, $3.00 per ease. 20 oases Old Country lye, $3.00 per ease. 20 oases Hoe Cake soap, $2.60 per case net. 50 eases brown soap, $2.25 per ease net. “Guarantee sale. Jobber’s discount on lye, 35 cents a box. All goods not sold to be rebilled after [200] expiration of sixty days. To work trade for Headley Grocer Company, January 18. “G. W. Poster, General Agent.” In explanation of the above agreement it was shown by the parties thereto that plaintiffs’ guarantee of sale relieved the Headley Grocer Company from all responsibility for any portion of the goods which it did not or could not sell in its territory, and that the provision for rebilling the goods meant that all goods delivered under this contract which were not sold in sixty days should, instead of being removed, be again billed to the Headley Grocer Company. The testimony also disclosed that plaintiffs’ salesman was to assist the salesmen of the Headley Grocer Company in making sales of goods, and that the Headley Grocer Company were to sell at the prices named in the memorandum, deriving its profit by receiving thirty-five cents per box for sales of lye, and deriving its profit as to other articles by selling at a specified amount, above the prices fixed in the memorandum. About sixty days after the date of this memorandum the Headley Grocer Company became insolvent, and under a conveyance of its stock in trade to a trustee for the benefit of its preexisting creditors, turned over to him certain of the goods delivered to it by plaintiffs, as aforesaid, of the value of about $170. The plaintiffs demanded these goods of the trustee, and upon his refusal to return them they instituted this action of replevin, which was submitted to the court without a jury, and a verdict and judgment rendered for defendant from which plaintiff appealed. DfaCwfwAhát°theyf disciose. The declarations of law given and refused by the learned trial judge, as well as his findings of facts, disclose that he deemed the transaction between plaintiffs and the Headley Grooery Company one of present sale of all [201] the goods shipped under the memorandum above set out. A regard for the terms of the instrument in the light of the undisputed explanatory evidence, will disclose that the theory of the trial court was a misconception of the law applicable to the facts in this record. There can be no present sale of goods without a transfer of title from the seller to the buyer. Spr?sent!.oods 111 Unless, therefore, the title to all the goods shipped by plaintiffs vested in the Headley Grocer Company when the goods were delivered to it, there was no present or executed contract of sale of the entire subject-matter between the parties. * 1 Benjamin on Sales, sec. 1; State v. Wingfield, 115 Mo. loc. cit. 436. This could not have happened under the stipulations of the contract in question. Indeed it is contradicted by the express language of the memorandum relied on by respondent to show a sale in presentí. According to the terms of this instrument “all goods not sold to be rebilled after expiration of thirty days.” The existence of this clause in the agreement necessarily presupposes that the title to all the goods therein referred to, did not pass out of plaintiffs when the memorandum of their agreement with the Headley Grocer Company was made. For if that operated to transfer the title to the entire goods which had been delivered thereunder, it would be absurd to provide for a future billing (or sale) of goods which already belonged to the buyer, and to which the seller had already parted with title. This conclusion can not be avoided, except by a construction which would expunge the clause in question from the written agreement. No law of construction will warrant the arbitrary excision of a stipulation congruous with all the parts of the written agreement in which it is contained and expressive of the intent of the parties. In [202] the memorandum or contract under review there is no repugnancy in any of its provisions, if the terms used are given their ordinary and natural meaning. As one of its clauses expressly provided for the rebilling (or resale, if the first billing was a sale) of whatever goods are undisposed of at the end of sixty days, we are compelled to hold that as to such goods there was no present and complete transfer of the title at the time the contract was originally made. As the goods in dispute belonged to that class, the only remaining question is whether or not the mortgage to defendant by the Headley Grocer Company gave him any title to the property, as against the plaintiffs in this actionf This question can only be answered in the negative. The defendant as the trustee for the benefit of its antecedent creditors acquired no higher title to the property conveyed to him than was possessed by his grantor, and as the record shows that the goods in question had remained in possession of the Headley Grocer Company for more than sixty days and were never rebilled to it, no title to them was vested in it, according to the memorandum or contract between it and the plaintiffs. Jacobi v. Jacobi, 101 Mo. 507; Lowen v. Forsee, 137 Mo. loc. cit. 41-43; Russell v. Rutherford, 58 Mo. App. 553; Napa Valley Wine Co. v. Rinehart, 42 Mo. App. loc. cit. 180; Dry Goods Co. v. Jacobs, 66 Mo. App. 362; Bank v. Bates, 120 U. S. 556-557-565; 2 Pomeroy’s Equity, 567. There is nothing in the case of Bicking v. Stevens, 69 Mo. App. 168, cited by the learned counsel for respondent which militates .against this view. The contract in that case contained .no clause of exclusion of any portion of the subject-matter of the consignment, from the operation of its terms. The contract in the case at bar contains an express exclusion of such goods as are not sold within sixty days, from the operation of its terms. Again, [203] in the case cited the evidence tended to show that the consignee of the goods was empowered to sell acl libitum as to prices, credit, etc. In the case at bar the testimony of Headley discloses that he was governed entirely by the prices fixed by the plaintiffs. The result is that the judgment in this case must be reversed and the cause remanded, to be tried in conformity with the views herein expressed. All concur.