104 Mo. App. 355 | Mo. Ct. App. | 1904
Plaintiff, a saloonkeeper, at Baring, Missouri, in November, 1901, through Yocum, local agent of defendant, verbally ordered a carload of cóál "to be shipped from Marceline, Missouri, by Lambeth' &
This an action by -plaintiff for conversion of the carload of coal, was tried before the court, which found for the plaintiff. —
It is a legal principle generally recognized, that when no express provision is made for time of payment, a sale of personalty is presumed by -law to be a cash transaction, and the delivery of the property and the payment of the purchase price are concurrent and the buyer is not entitled to demand, nor to receive delivery or possession of the goods, the subject of the contract, without proffer of the purchase price or its mutual payment. In the absence of other arrangement, express or implied, concerning the time.of payment of.the price and providing for future payment^ or where the parties
2. The answer was a general denial, and, therefore, defendant in this action was barred from recouping the price of the coal, which it seems to have paid consignors after this action was begun, and for the same •reason no allowance for freight can be made, nor is any question of subrogation of defendant to rights of the consignor ensuing from such payment, before us. The judgment of the court for plaintiff in the sum of $63.25 finds abundant support in the testimony from which it is established beyond dispute, that defendant appropriated to its own use the carload of coal ordered by and belonging to plaintiff. Although this action of defendant may have occurred through an honest mistake of its agents regarding the ownership of the particular carload, yet plaintiff was none the less entitled to redress.
The judgment is for the right party and is affirmed.-