69 Mo. App. 168 | Mo. Ct. App. | 1897
The answer denied all the allegations of the petition except thht in relation to the execution of the deed of trust, which was admitted. There was a trial and decree for plaintiff, and defendant appealed.
It appears from the testimony of the plaintiff’s son that the agreement between the plaintiff and the corporation, already mentioned, was to the effect that the plaintiff would ship out goods on consignment to be sold by it on plaintiff’s account. That under the agreement the said corporation was, on the first of each month, to render an account of the amount of the sales made during the previous month. It was to itemize
These accounts were rendered, generally accompanied with a note or cash for the goods sold during the previous month. This agreement and practice was not changed in any way after Campe succeeded the corporation. On April 4, 1895, Campe wrote the plaintiff the following letter: “We inclose you acceptance for $1,075.91 to balance account to date, as per statement inclosed. * * * We thought it would be more satisfactory to you to send an acceptance for stock on hand than to carry same in stock so long, not realizing anything on it. ” Although this letter reached plaintiff in the due course of mail no response was made thereto. Afterward, on the nineteenth of April, Campe executed the deed of trust already referred to. It appears that later on the plaintiff, hearing that Campe had made the deed of trust, sent his son to Kansas City, who called upon Campe, and after inquiring into the situation expressed, at first, a doubt as to whether he, as the representative of the plaintiff, would retain the note, some twenty days previously received, or would surrender it and claim the goods then in possession of defendant. He finally concluded to pursue the latter course and then it was that the offer to return the note was for the first time made.
It appeared that on the face of the plaintiff’s invoices of the goods shipped to the W. C. Campe Roofing & Manufacturing Company were printed the words, “To be sold on our account.” On the other hand, it was testified by Campe that the course of dealing between him and plaintiff was that on the first of the month he would render a statement to plaintiff showing the goods that were on hand, and what amount had been sold, and send the cash or a note to settle for the amount sold, and that this manner of dealing had been
Campe further testified that in the spring of 1895, just before the time he gave the plaintiff the note hereinbefore mentioned, that a traveling man of the latter had visited Kansas City and had offered the plaintiff goods $2 less per ton than he (Campe) was paying, and that in view of this he concluded to quit doing business with plaintiff and accordingly wrote him said letter of April '4, inclosing his note in full settlement of his .account to that date, or, in other words, in settlement for the goods sold the previous month as well as for those on hand. The undisputed evidence shows that the whole course of dealing between plaintiff and Campe was that when the former shipped the goods to the latter that a fixed price was charged for them; that the latter paid the freight and insurance thereon; that he fixed his own prices and terms of sale; that the sales were made on his own account and not on that oE the plaintiff; that he alone looked to the purchaser for payment; that he rendered the former no account of sales but only a statement of the amount of the sales of the previous month and the items remaining on hand; that both parties treated the goods as those of
“But the relation of the parties is not that of principal and agent if the consignee is at liberty, according to the contract between him and his consignor, to sell at any price he likes and receive payment at any time he likes, though he is bound, if he sells the goods, to pay the consignor for them at a fixed price and a fixed time.” In 21 American and English Encyclopedia of Law, 520, it is stated: “In the case of goods consigned to be sold for the consignor, who is to regulate the price and terms of sale, the factor is an agent and the contract one of bailment. * * * If, however, the consignee or factor is to sell upon terms fixed by himself, and is bound to pay to the consignor a fixed price, the contract is one of sale.” Arthur v. Wilder, 3 Barb. 66 was where the defendant gave a receipt in these words: “Received of J. W. three barrels of white fish, to be paid for, when sold, at $6 a barrel,” and the court held, “The transaction was clearly a sale of the fish at $6 per barrel.” In Braunn v. Keally, 146 Pa. St. 519, 524, the agreement was: “The goods were to be billed by plaintiffs to defendant at factory prices in the city of Chicago, less five per cent, defendant paying freight at Pittsburg, the point of delivery; and defendant was to receive for his services whatever price he could obtain above the bill price and freight.” The court said, in deciding whether the contract was one of sale or not: “Notwithstanding the ingenious color of agency thus sought to be thrown over it, this is a contract of sale. The defendant was to get the goods at the stipulated rate, and was entitled to receive the full price he could sell them for. What more or less does any purchaser do who buys to sell again? If he*175 made a profit it was his; there was no duty to account; if he made a loss that, also, was his, for the agreement made no stipulation for recoupment. It was a plain, ordinary case of sale and carried with it the obligation to pay the agreed price.” In the ease of Granite Roofing Company v. Casler, 82 Mich. 466, the transaction was almost identical with the case at bar. May 19, 1886, the defendants were given the right to handle patent roofing of the plaintiff in certain counties of Michigan. On the same day the arrangement was made there was entered on the contract the following memorandum: “Sold Casler & Co. one car load of roofing to be paid for as sold; settlement to be made monthly of all sold.” The agreed price was $562.50. The car load was shipped and received by the defendants and they made some sales and settlements as agreed. On July 12, 1887, the balance of the goods on hand were destroyed by fire. The plaintiff sued for the price of the goods so destroyed, claiming the transaction amounted to a sale. The defendants claimed that they held the goods for sale on account, and the lower court so held and found for defendants. But the supreme court held that it was a sale upon credit; the time of payment- being fixed at the end of each month after defendants had made sales, and reversed the judgment and gave judgment for plaintiff. In Ex parte White, L. R. 6 Ch. Ap. Cas. 397, it was held that “if the consignee is at liberty to sell at any price he likes, and receive payment at any time he likes, but is to be bound if he sells the goods to pay the consignor for them at a fixed price and a fixed time, in my opinion, whatever the parties may think, their relation is not that of principal and agent * * * and in point of law the alleged agent in such a case is making on Ms own aecoimt a purchase from his alleged principal and is again reselling.” And to the same effect are Peora Co. v.*176 Lyons, 153 Ill. 427; Chickering v. Bastress, 22 N. E. Rep. 542.
It seems to us that the transaction between plaintiff and Campe, even as disclosed by plaintiff’s evidence, when tested by the rule established by the foregoing authorities, was a sale, and that the title of the goods passed thereby from the former to the latter.
Since we shall reverse the judgment without remanding the cause it is unnecessary to notice the other errors assigned by defendant. Decree reversed.