*1 1921. TEEM, OCTOBEE Herrington et v. Seidel Lbr. Co. al. things being
All case that this considered, we find party right was well and that verdict is for tried, and should and it is affirmed, so ordered. he Bradley,
Cox, P. concur. J., J., HERRINGTON, FLOYD W. S. . L. MITCHELL and R Trading PETTIS, Partners Under the Name Style Appel of COMPANY, ESTES LUMBER lants, COMPANY, LUMBER v. JULIUS SEIDEL Corporation, Respondent. Opinion January 3, Appeals. St. Court of Filed Louis able. con- Contracts; and Non-sever
1. SALES: Unless Severable is, nature, clearly apportionable, tract of sale is con- entire, requiring buyer to be to the extent of either strued reject all. included therein or them take .to Accept Reject -: -: Not Severable: Cannot Part and parties con- Part. a contract lumber where Under of sale piece shipment templating did not that each intend timber separate shipped and in- constitute basis so should cannot, reject part dependent contract, *the the defendant being balance, such contract entire retain the lumber and not severable. City
Appeal of the Court St. Louis. from Circuit Judge. Benjamin Klene, J. —Hon. and remanded.
Eeversed appellant. for & Trueblood Wilson accept part right buyer no has A acceptance of part goods purchased, ject and an of the acceptance all, upon binding him as hewill part- partly buyer to rescind entitled is not for L. E. C. ly sale. the contract to affirm 101; White Sigerson Oye. Harker, acceptance, (2) After an A. 8 L. E. Miller, (n. s.) REPORTS, MISSOURI'APPEAL Herrington et al. v. Seidel Lbr. Co. buyer estopped defending has himself from suit nonperformance contract buyer pay price,
the seller and the must *2 by accepting buyer using goods, limited has remedy warranty. to an action for a breach of Black Cyc. River Lumber Co. Warner, v. 35 386; 261 Mackey, City, 263; and 140 Stevens v. 40 v. Mo. Lamore 228; App. 145; Mo. El Davis, Paso 194 1; v. Mo. 23 R. C. 304; L. Berthold 1442; Louis, 165 v. on St. Mechera p. (3) Sales, sec. 1395, The measure of dam- ages, acceptance, warranty after is limited to the goods difference between actual de- value they according livered and their value if had been Advertising contract. Outcault Co. v. Shierbaum, 209 Refining Maguire 982; S. W. Supply Sinclair Co. v. Oil & 221 Co., S. W. 378. Taylor respondent.
Seneca G.
(1)
purchaser
goods
Where the
of a certain
orders
description,
ships part
class, kind or
seller
goods
goods
ordered and
ordered,
also other
not
purchaser may accept
pay
goods
for the
ordered
n without
making
price
himself liable for the
other
goods;
and where
he returns such other
within
seasonably
reasonable time or
rejection
informs the seller of the
goods (of
of such other
kind,
another
class or
description
ordered),
than those
he'is not liable therefor.
Coff,
Goldstandt-Powell Hat Co. v.
19
243;
Okla.
Cohen
v.
53 Conn.
Pemberton,
221;
Lane,
v.
Gardner
12 Allen
appeal,
39; s. c. on third
98 Mass.
Rodman v.
517;
Guil-
ford,
405;
112 Mass.
v.
123
Newhall,
Atherton
Mass.
Buckeye Buggy
141;
43
Stables,
v. Montana
Wash.
St.
Murphy,
Kipp Meyer,
Kellogg
54 N. Y.
49;
v.
v.
685;
5
v.
88
Hun,
Alton,
62;
Div.
111; Gilbert
v.
Holmes
Gregg,
H.
Lumbr
621;
Liller,
66 N.
Canton
Co. v.
107
appeal,
112 Md.
146;
528;
Md.
s. c.
Stearns
second
Salt
700;
Lumber
Mich.
&
v.
188
Lumber
Dennis
Supply Co.
Robertson &Wilson Scale &
v.
212
Richman,
Cummings,
Lampson
491,
v.
52 Mich.
Mich. 334;
497;
70
TERM,
Lbr. Co.
et
r. Seidel
al.
Ly-
v.
McFadden
Flint
bee,
390;
v. Weather
63 Mich.
Bridge
King
Iowa,
on, 4
Calif. 17;
Bushnell
Ky. 579;
Grocery
405;
Co., 148
Showalter v. Winchester
Mfg.
Teeter
Freeman
Skin-
602;
v. Cole
151 N. C.
McEntyre McEntyre,
299;
12 Ired.
ner,
Ired.
y. Halsey,
Bnist Co.
Waldo
Robert
Law, 109;
3 Jones
Moiling
Dean,
Mercantile
C.
73 S.
Camp.
Champion
L.
Shortt,
Times
R. 217;
Gatenby
Campbell
Aitken,
Boullen
Co., Ltd., v.
(1908),
Cyc,
sec.
258-259;
Sales,
C.
Tiedeman on
S.
p.
p.
70,
Sales,
493,
sec.
sec.
Williston
Halsbury’s
England, p.
Laws
difference
1No.
3 or between No.
between
and No.
No. 4 or
No. 2
culls is
between No. 1 and
quality
not mere
but
is a
difference
difference
species
description.
kind,
as if
class,
A
“It
*3
should sell a
to B and
a
instead.”
hors©
deliver
cow
appeal, 98
v.
Allen
Lane,
Gardner
12
s. c. on
39;
third
53
517;
221;
Cohen
Whitehall
Pemberton,
Mass.
v.
Conn.
Joseph
Mfg.
2
484;
Richardson,
v.
119
Wise,
Pa.
v.
Co.
St.
App.
Superior
Catchings
51;
15
208;
Hacke,
Pa.
Mo.
v.
Hngerer
Mo.
Co., 155
&
Maull
Co. v. Louis
&Fish
Cheese
Douglas,
App.
84 Md.
Co. v.
95; Columbian Iron Works
Springfield Shingle
149
44;
570';
Gould
Mass.
Stein,
v.
Edgecomb
F. Dona-
Co.,
620;
52
St.
J.
Co. v.
Mill
Wash.
Equipment
L.
42:2;
Co.,
hoo
Reliance
201Ala.
Cohen
v. Co.
209; Azemar
232 S. W.
Co.,
Co. Diehm Grocer
Grocer
v.
(3)
rejection
Eng.
v.
23
Cas.
Casella,
Rui.
' n return
desorption, not
or
of articles of a different kind
refusing
answering
contract, or of
terms of
the
up-
accept
does
stand
for such
not
reason,
such articles
one of insistence
rescission, but is
of
right
nor
contract;
of
does
the fulfillment
depend upon
jest
of a
the existence
return them
.and
warranty.
Pemberton, 53
221. Man-
Conn.
Cohen v.
Lampson
Cummings,
Trigg, 113 Mass.
v.
350;
v.
field
Spring-
193;
Minn.
Kr-use,
Potsdamer v.
57
Armsby App. 253; Mo. Beck & Cor- bitt App. Co. Holbeck, Iron Mo.. Childs App. Emerson, 117 Mo. & 671; Alvin Fruit Truck Ass’n App. Ungerér v. Hartman, Mo. Go. v. Louis (5) Maull Cheese & Fish Sale warranty by imparts description prop- only not erty description, delivery prop- sold is but the erty description of that essence of fulfill- part ment of the contract of sale on of the vendor. delivery goods species or class, of another kind, description, contradistinguished as a mere from defect quality goods or difference in of the same kind, class species scope beyond thing or described, is of and Springfield Shingle aside from contract of sale. Edgecomb Mill Wash. Azemar St. v. Casel- Eng. la, 23 Rui. cited under Points Cas. Authorities supra. 21, A severance an otherwise entire shipment goods order from a distance of description may by certain or ldnd effected act parties, and is so effected the vendor deliver- ing part refusing deliver the such acceptance and the rest retention use Canton vendee delivered. Lumber Co. Short, Md. Liller, Saunders v. 86 Fed. Stearns Salt 188' Lumber Co. Lumber Dennis *4 Hoyt, Mich. 18 700; 555; Bowker v. Pick. v. Richards Champion Camp. 53; 111. 1 Shaw, 222; Shortt, v. 67 (7) v.| B. & Weatherell, Oxendale 386. Contract, 9 G. en- single consideration, Performance or tire or severable. qnd question opportionable. or The is one of intention, usually, question often, is if not of fact. intention Crawley, Billups Daggs, 44; v. Cantwell v. 188 Mo. 38 Mo. App. App. 33 v. Ind. 367; Stone, 112; Weil Holmes v. Gregg, v. Liller, N. H. Lumber Co. 107 621; 66 Canton Md. Salt Lumber Co. v. Dennis Lum- 146; Stearns 77 1921. TERM,
Herrington et al. v. Lbr. Co. Seidel Lampson Cummings, 52 Mich. 188 700; her Mich. v. Fargo Wyo. Blyth Au- 304; 15 Schiller v.
491; supra. 1 cited under Points and 2, thorities pur- may framed the intention of sale that he so seller, dominates rather than that chaser, question severability. Keville, Iowa, 184 Lahiff v. (8) fur- are work done or materials Where brought special thereon, contract quantum suit is nished quantum valebat, meruit a count on or without plain- plaintiff unless that the cannot recover is shown performed of the contract on tiff has part terms performed. 104; Bersch 37 Mo. Sanders, v. Eyerman Cemetery v. v. 59 Mo. Mellier, 526; Turner Ass’n, 61 Mo. Mo. 489; 313; Davis v. 67 Plow Brown, Ridge, v. V. 146 Mo. 610.; 84 Mo. Keith Hartman, Billups Daggs, Halpin Manny, App. Mo. v. 90; 388; 33 App. Supply Lumber Co. 38 Mo. v. Water App. Sugar App. 622; 102 Mo. Mo. Brierre App. Young, Nelson, Mo. Skinner v. Wade (9) App. recover Mo. Vendee entitled to expenses storage. Rubin v. the reasonable Sturte- 26 C. Acme Lumber C. A. Board vant, petition does not state Com’rs, 137 La. alleges action. It sufficient to constitute facts cause plaintiffs agreed “the contracted sell and de- . . . known No. 1 to the as lumber, liver defendant S alleges plaintiffs delivered Num- &E,”but nowhere accepted in lieu or other ber that the lumber defendant performance, plain- or in lieu of Number duly performed contract on the conditions tiffs part. 84 Mo. Hartman, ; their Halpin Moline Plow Co. v. Billups Daggs, Manny, Hooser, S. W. 618. v. Van Lewis copartners, NIPPER, ‘Plaintiffs, as sued C. purchase price of a carload of sold cover the defendant, Mississippi shipped from State ordered Louis, Defendant the lumber Missouri. to St. through by plaintiffs received order which was brokers, *5 MISSOURI APPEAL REPORTS, et Seidel al. v. Lbr. Co. February about ‘‘1 Car 20, 1918. for The order was Regular. 2x12-20No. 1 & Terms S. $28. Delivered.” E.— acknowledged receipt Plaintiffs in a letter this order February specifications they to wMch 20, dated defendant, that Pine stale official Southern dispute apply, Association to over were and in case of a inspection grades tally, by an official such asso- ciation should be taken aas for all settlement, basis days receipt claims to be filed from five of stock within inspection and lumber be intact until held and settlement was made. informed in Defendant was also plaintiffs get this letter that if car, “42'” unable to were they shipped would two make loads. lumber was in two cars. One car arrived and one on on March 8,1918, rejected part 9,1918. March lumber Defendant of this grade that some of No. 2 instead itTwas ‘‘ ’’ 1,No. and there some culls. w.ere brought Plaintiffs suit to the full amount recover $515.20. up its some of
Defendant, answer, set fact that compeiied the lumber was defective, and it was go grade buy and additional out lumber of the called by original for which contract, cost more than the $50 price plaintiffs, contract for same lumber thei from and damages $30 Defendant $50. for also claimed as asked storage charges, unloading restacking for $15 defective lumber. refusing case, the trial of the court,
On after by plaintiffs, declarations of law asked certain entered plaintiffs finding judgment for for $264.33, leaving for on its counterclaim $83, for defendant a net plaintiffs. judgment following Plaintiffs offered $181.33 which law, declarations court refused give: declares, matter “I. The court as a of law that the rescind its of sale in cannot defendant and the evidence in this law case the under accepted held have the car of will defendant acceptance plaintiff, portion delivered TERM, 1921. Herrington et v. Seidel Lbr. Co. al. *6 in evidence the the car, which the defendant admitted accepted, judgment favor be in
it and will, therefore, the plaintiff plaintiff’s in the on cause of action the plaintiff upon of the the defendant’s counterclaim.” favor “II. -The of law, a matter declares, court .as damages be the the counterclaim would defendant’s on of the limited to the actual valué difference between the goods goods been have delivered and what such would complied with they worth at time if the of the sale had there the of the and the terms Court declares contract, prove these was no the defendant evidence offered facts, and, the would be limited therefore, defendant recovery damages counterclaim.” the of nominal on principal question determination,
The this for our par contract is not the between record, whether or way, it in another or, ties was to state could de severable, reject accept portion lumber, a of this fendant and. rejected was of other that such lumber so grade. quality a careful or After examination an inferior elsewhere, we are authorities this State opinion contract the facts case under this accept not severable, defendant could not was portion reject portion. it While of this many holding distinguish possible of the cases such is right buyer affecting entire as to be contract reject accept part goods balance, of the holding to be severable in this the contract from the cases gen distinguished. many regard, cannot be of them apparently tendency to construe of the is courts eral entire, to be to the extent this character contracts buyer requiring in either to take of cluded reject them all, unless contract therein, clearly apportionable. [Pacific Timber is nature in its Sig Pump Iowa, 308; & Iowa Windmill Co. Lumber Hermann Harker, erson v. Perry (N. Ayers, Y.) Heidelburg, Misc. Ill. Converse, Woodruff Harzfeld v. Cal. Y.) Levy v. (N. John C. Dettra & 51 Barb. Peterson, Syme-Eagle Joplin Y.) (N. Co. v. 91 Misc. 246.] 229 W. S. —Mo. Grocer — . 209 MISSOURI APPEAL REPORTS, et al. Seidel Lbr. Co. Supreme Michigan, very in a similar Court
case to the one held the to be here, contract severable. [Stearns Salt & Lumber Lumber Co. v. Dennis 700.] Mich. However, dis members of the court three sented that case.
The case of Timber Pacific Iowa Windmill supra, Pump Co., holds a similar contract to entire, be seyerable, and not determining rule and the therein announced question whether or not such contracts generally severable, are entire or one followed throughout country. the courts this It is stated: there general may rule, “As said that *7 purpose, entire, terms, nature, when its and con- it templates parts intends that each and and all of its and consideration be common the shall each to the other and ’ ‘interdependent. general On the other hand, is the rule purpose that a contract is in severable on© nature and susceptible apportionment. ques- of division and The given separable a tion whether contract is entire is very largely one intention, which intention to be is language parties determined from the the have used and subject-matter agreement.” the of the par- do not think it reasonable to
We contemplating hold that th© shipment ties the of this carload (which present shipped in case was. divided and in piece cars) shipped intended each two timber so separate independent should constitute of a th©basis reject that the defendant contract, so could lumber and retain balance. Sigerson supra, v. Harker, In it was held that the pork quantity purchaser of a barrels could not select complied reject with such as he claimed the contract, warranty quality. balance for breach of Scott, speaking court, said: J., prejudice most course, cases, “Such would rejected separation of the articles. sale would probability good of a sale of them. A diminish article good may many may frequently one, a bad ones sell carry along them a with few are indifferent.’’’ TERM, 1921.
Bennett v. Acc. Standard Ins. Co. shipped This not case where the were to be anything, indicate that installments, nor is there par- shipper knew that the for a lumber was used to be purpose. ticular upon proceeded
It is evident an trial court theory erroneous of the law. judgment
The Commissioner recommends that the cause be reversed and reminded. foregoing opinion PER CURIAM:—The Nipper, opinion adopted as the
C., is court. judgment accordingly circuit court cause remanded. versed Becker
Allen, Daues, J.J., J.,P. concur. BENNETT, D. N. BEN FREDERICK HARRIS Respondent, NETT, Guardian, THE STAND COMPANY, ARD INSURANCE ACCIDENT Appellant. Corporation, Appeals. Opinion January 3, Filed
St. Louis Court Sufficiency. Accident Insurance: Evidence: an INSURANCE: In policy an accident insurance defended on action founded *8 injuries plaintiff’s attempt com- resulted from an uphold judgment suicide, held sufficient to mit evidence plaintiff. favor Theory: Adopted Appeal. Trial on APPELLATE PRACTICE: Where policy insurance an action an accident was tried founded theory misrepresentation (section 6142, statute Re- theory apply policy, the did not to the trial 1919) Statutes vised appellate adopted court. will be Apply Accident Insurance: Renewals: Warranties: INSURANCE: Policy Original Where Date was Issued. an accident insurance issued, receipt policy wherein it was and a renewal renewed was agreed at in consideration of truthfulness issued that same was original policy, of which in the one that date warranties policy being no of accident insurance the effect that statements or.,renewal ev'er canceled had been to insured issued theretofore policy company refused, another had the fact that thereof A.—6 209 M.