Creelman Lumber Co. v. DeLisle

107 Mo. App. 615 | Mo. Ct. App. | 1904

Lead Opinion

BLAND, P. J.

(after stating the facts). — 1. The certificate of the Secretary of State authorizing plaintiff to do business in this State was obtained by plaintiff before the trial of the cause. Defendant objected to the introduction of any testimony by the plaintiff, on the ground that the certificate of the Secretary of State was not issued until after the suit was commenced. This objection was untenable, under the ruling of the Supreme Court in the case of Carson-Rand Co. v. Stern, 129 Mo. 381, 31 S. W. 772, and was properly overruled.

2. The following facts were proven by plaintiff and not controverted by defendant: First, that the lumber in question was stacked by DeLisle Bros. & Boon. Second, that it was estimated by plaintiff’s inspector and five dollars per thousand feet advanced on the estimate by plaintiff. In this state of the evidence, it was a question of law to be determined by the court from a proper construction of the contract as to which of the parties to the contract owned or had the right to the possession of the lumber at the time the demand was made by plaintiff on DeLisle Bros. & Boon for its delivery. Spalding v. Taylor, 1 Mo. App. 34; Miller v. Dunlap, 22 Mo. App. 97; The St. Louis Gaslight Co. v. Ins. Co., 33 Mo. App. l. c. 385; Stewart v. Sparksman, 75 Mo. App. 106; Crawley v. Mullins, 48 Mo. 517. But both parties by their instructions submitted the construction of the contract and the right of possession thereunder of the lumber in question to the jury and are for this reason in no position to complain that the court did not interpret the contract for the jury, and are concluded by the construction the jury gave to the contract. The instruction given for the defendant was a counterpart of that asked and given by the plaintiff,- and the error in the charge to the jury as to the law of the ease is not available to the plaintiff on this appeal. Cady v. Coates, 101 Mo. App. l. c. 152, 74 S. W. 424, and cases cited.

3. A mass of irrelevant and incompetent testimony was admitted,. over the objection of plaintiff, which tended to show a violation of the contract by plaintiff in having made an improper inspection of lumber other than that in controversy, by tearing down and scattering other piles of lumber, that had been put up by DeLisle Bros. & Boon, and leaving them down whereby the lumber became doty and worthless, thus entailing a loss upon the firm. No counterclaim for any damages caused by a violation of the contract on the part of the plaintiff was set up in the answer, nor was any specific violation of the contract alleged therein, hence there was no issue raised by the pleadings under which this character of evidence was relevant. The result, we think, shows that this evidence was prejudicial to plaintiff, wherefore the judgment is reversed and the cause remanded.

Reyburn and Goode, JJ.,‘ concur.

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Rehearing

OPINION ON MOTION FOR REHEARING.

Defendant in his motion for rehearing contends that the judgment should be affirmed, notwithstanding error intervened at the trial, for the reason the contract shows that the plaintiff had no title to the lumber for the conversion of which it sued. If the jury correctly interpreted the contract then the submission of its construction to them, though an erroneous submission, was not prejudicial, but if the jury was in error in its construction of the contract then the verdict is opposed to the written evidence in the case and plaintiff’s motion for new trial should have been sustained.

. , A construction of the contract is, by the motion for rehearing, forced upon us. By the terms of the contract the mill owners sold and agreed to deliver to the plaintiff all the lumber they then had on hand and the “entire cut of lumber manufactured at their mill from November 1, 1899, to January 1, 1901.” The language, of the contract is that the “party of the first part, (the lumber company) hereby sells and agrees to deliver,” etc. The contract was not an agreement to sell in the future but the sale was in praesenti as to all lumber on hand and to take effect upon lumber, when manufactured. In respect to the delivery of the lumber, the contract shows that the millowners agreed to lease to plaintiff a piece of ground upon which they agreed to pile or stack the lumber as sawed. It was agreed that after it was stacked, the plaintiff, between the first and tenth days of each month would havé the lumber estimated in stacks and when .estimated each stack should be marked F. E. C. L. Co. and each pile numbered. On these estimates plaintiff agreed to advance to the mill-owners five dollars per thousand on all lumber in completed piles. The contract shows that these advancements were to be treated as advance payments on the lumber which plaintiff should receive on final inspection. The contract shows that the millowners agreed to load the lumber on cars without charge to plaintiff and that the inspection of the . lumber should be made by the plaintiff as it was taken from the piles or the mill to be loaded on the cars. The plaintiff was not bound to accept and pay for all lumber cut and piled, but such lumber only as filled the requirements of the contract. The contract is not skillfully drawn and contains some seemingly contradictory clauses or terms, but we think when •considered as a whole, it shows the millowners sold to plaintiff at the prices agreed on all the output of the mill for the period of time mentioned in the contract; that they agreed to lease to plaintiff a piece of ground upon which they would stack such of the lumber as the contract required to be stacked and agreed to load the lumber on cars at their own expense. Plaintiff agreed to estimate the piles of lumber once a month and to advance five dollars per thousand on the lumber so estimated when in completed piles and to charge the advance to the millowners as so much paid on the purchase price of the lumber. Plaintiff did not agree to accept all lumber stacked and estimated, but agreed to advance the five dollars per thousand on the estimate and take the risk that there would be on final inspection enough lumber filling the requirements of the contract to save it harmless for the advancements. The evidence does not show whether or not the lease of the ground called for by the contract was executed. In the absence of a contrary showing, the presumption is that it was executed and that the forty-five piles of lumber alleged to have been converted by defendant were stacked upon the plaintiff’s premises. But whether this be true or not, the evidence shows the lumber had been stacked, estimated, marked with plaintiff’s initials and five dollars per thousand paid on the estimate. These facts we think as between the parties shows the lumber had been delivered to plaintiff and that the title thereto had passed to it.

In Middlesex Co. v. Osgood, 4 Gray 447, the plaintiff contracted to sell the defendant all the “manure waste” "which might be made at their mill for a year for three hundred and. twenty-five dollars. The waste was placed in a certain bam ready for delivery to the defendant but he never demanded it nor had the plaintiff ever offered to deliver it. This was held sufficient delivery to enable the plaintiff to recover the price.

In Goddard v. Binney, 115 Mass. 450, plaintiff built a buggy for the defendant upon special order. It had the defendant’s name upon it and was set apart for him in the shop and, at his request, was kept for him when it was destroyed by fire. It was held that there was such a delivery as to enable the plaintiff' to recover the price.

In Means v. Williamson, 37 Me. 556, a chaise sold was in the vendor’s stable where the vendee wished it to remain until he could build a shed for it. It was-to be paid for in wood1 the following winter. The buyer never removed it or delivered any wood, but it was held a sufficient delivery to enable the vendor to recover the price.

In Beller v. Block, 19 Ark. 567, it was held that on a sale of a wagon at public auction the delivery is sufficient if the wagon he pointed out and the purchaser informed that he can take it away.

In Rattary v. Cook, 50 Ala. 352, a vendor of lumber which was paid for deposited it on the river hank at a selected place and the buyer was notified that it was at his risk. It was decided that .the title- passed and the buyer was entitled to possession. There are a number of cases holding that the title passes on the depositing of the article at the designated place of which Washburn Iron Co. v. Russell, 130 Mass. 543; Phelps v. Hubbard, 51 Vt. 489, and Sanborn v. Benedict, 78 Ill. 309, are apt illustrations.

In Sedgwick v. Cottingham, 54 Iowa 512, plaintiff sold defendant a carload of wheat to be shipped to a named place and there delivered on the track where it was to be taken from the car by the defendant, weighed by him and paid for according to the weight. The wheat arrived at the station, was placed on a sidetrack and there destroyed by a flood before weighed. It was held the delivery was complete.

In Bogy v. Rhodes, 4 Green (Iowa) 133, the plaintiff delivered an unmeasured quantity of wood on board a flatboat to be paid for when measured at a certain rate per cord. The defendant took the boat in tow but during the voyage it was sunk and all the wood lost. It was held that, notwithstanding the wood was not measured, the title passed.

In Hening v. Powell, 33 Mo. 468, it is said: “Where it-was agreed that the goods should be .delivered upon such boats as the purchaser might name, and the seller did so deliver the goods and notified,the purchaser thereof, the delivery was complete, the title passed to the purchaser, and he became liable for the price. ”

In State v. Durant, 69 Mo. App. l. c. 396, it is said: “The doctrine of the common law in reference to.sale is, that if the seller has performed everything that is required of him as seller, and the property is so situated that the buyer may rightfully take possession of it at his pleasure, the title passes. Actual delivery is not necessary. Williams v. Gray, 39 Mo. 201; Southwester, etc. Co. v. Stanard, 44 Mo. 71; Hening v. Powell, supra.” See also Wren v. Kuhler, 68 Mo. App. 680.

In Wind v. Iler, 27 L. R. A. 219, 93 Iowa 316, it was decided that the reservation of the right to inspect goods does not of itself indicate that the title shall not pass until the goods are tested.

“Weighing or measuring is not absolutely essential to a completed sale, except when necessary to define the subject-matter.” Nash v. Brewster, 2 L. R. A. (Minn.) 409; Farmers Phosphate Co. v. Gill, 1 L. R. A. 767.

In Kauffman v. Raeder, 54 L. R. A. 247, it is said: “All that is ordinarily required of a party to a contract who has agreed to deliver personal property upon the payment of a debt or price is that he shall put the property in some convenient place, subject to the disposal of the payer upon his compliance with the terins of the contract, and that he shall notify the promisor of the fact. ’ ’

In Weld v. Cutler, 2 Gray 195, it was held that where under a sale of a part of an entire mass of goods the purchaser is allowed to take possession of the whole for the purpose of enabling him to separate and take out the portion sold the sale and delivery are complete between the parties. See also Crofoot v. Bennett, 2 N. Y. 258. It is a matter of intention in each case and if the parties have made it sufficiently clear that they intend the property to pass at once that intention as between themselves must prevail. Logan v. LeMesurier, 6 Moore P. C. 116. If it clearly appears to have been the intention of the parties that the property should be deemed to be delivered and the title to have been passed and especially if their acts be inconsistent with any other view the mere fact that something remains to be done will not govern such intention. Riddle v. Varnum, 20 Pick. 280; McCandish v. Newman, 22 Pa. 465; Stone v. Peacock, 35 Me. 385; Fuller v. Bean, 34 N. H. 290; Kimberly v. Patchin, 19 N. Y. 230.

These cases serve to illustrate and apply the common law doctrine that as between the parties all that is required to give validity to a sale of personal property is the mutual assent of the parties to the contract. Under the terms of the contract between the millowners and plaintiff, the sale of all the lumber on baud was completed on the execution of the contract. What it manufactured after the signing of the contract, according to all the authorities, became' the property of the plaintiff when it was stacked upon its premises, its quantity estimated and the piles marked with plaintiff’s initials, and we conclude that the lumber which had been stacked on the premises, estimated and marked was the property of the plaintiff and that the jury misconstrued the contract. The motion for rehearing is therefore overruled.

Reyburn, J., concurs. Goode, J., dissents from the construction of the contract given in this opinion.