122 Mo. App. 14 | Mo. Ct. App. | 1906
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.”
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
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
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
It is manifest that there can be no recovery in the case and the judgment will consequently be reversed.