155 Mo. App. 685 | Mo. Ct. App. | 1911
Plaintiff brought his action against defendant, a manufacturing corporatiop, organized under the laws .of the State of Michigan, having its manufacturing plant in that state, to recover $1200 paid to defendant by plaintiff on a contract originally
The answer, after a general denial, sets up a counterclaim for $3800, averring that defendant had in all things performed the terras and conditions of the contract and had completed the boat according to the plans and specifications of the contract, and averring that defendant “has always been ready and willing -to deliver the same to plaintiff upon payment therefor and is now ready and willing to do so,” and that plaintiff has failed and refused and still fails and refuses to pay plaintiff the balance due when the boat was completed, defendant demands judgment for $3800 and costs.
By way of reply, after denying the new matter set up in the counterclaim, plaintiff charging that defendant is a' corporation of the State of Michigan and that the contract was entered into in this state and that when the contract was made and down to the time of the filing of its answer defendant had not complied with the laws of this state requiring foreign corporations transacting business in this state to file a copy of their charters and to take out a certificate of author
At the trial before a court and jury there was evidence tending to prove that a sales agent of defendant, located in St. Louis, had there made the original agreement with plaintiff; that that agreement was transmitted to the home office of defendant at. St. Joseph, Michigan, and acceptance of it declined unless certain material changes were made in it. Writing to this effect to plaintiff, the latter accepted the modification by letter. In the correspondence it appears that in negotiating for the building and purchase of the boat with Miller, the local agent,' that this preliminary contract between plaintiff and defendant’s agent, Miller, was entered into on the 12th of March, 1906. It also appeared that defendant’s manufacturing plant was located at St. Joseph, Michigan, where the boat was constructed, and that it had no plant and did no work on the boat in Missouri. On July 23, 1906, the boat not having been completed, plaintiff wrote to defendant, stating that when he placed the order with Mr. Miller, it was the understjanding between them that the boat was to be delivered in St. Louis not later than the 15th of June, so that plaintiff could enter it in some boat races that were to take place about that date. In the contract itself, however, no time of completion or delivery of the boat is specified. Some time in October, 1906, the boat not having been finished, plaintiff, on invitation of defendant, went up to see it. It was not then completed, in point of fact, the engine seems neither to have been selected nor installed. Plaintiff left St, Joseph with the understanding that he would be sent for in a few weeks when the boat would be completed and he could again inspect it. There was evidence tending to show that he had received no such notice, and accordingly on the 26th of’ December, 1906, he wrote defendant, going over the matter of the delay and disappointment and expense he had been subjected
At the close of the testimony the court, at the instance of plaintiff, gave three instructions, the first to the effect that if the iury found and believed from the evidence that the contract had been entered into between the parties and that plaintiff paid defendant at
Of its own motion the court instructed the jury as to the number of jurors necessary to concur in a verdict and correctly instructed the jury as to their province in determining on the credibility of the witnesses and the weight to be given to their testimony.
Plaintiff requested two instructions to the effect that if the jury found that defendant was a foreign corporation, transacting business in the state without having complied with the laws relating to foreign corporations, that the defendant could not recover on its counterclaim. These were refused, plaintiff excepting.
At the instance of defendant the court gave the following instruction to the jury:
“1. The court instructs the jury that if you believe and find from the evidence that plaintiff and defendant entered into a contract whereby defendant agreed to build a motor boat for plaintiff for a sum agreed upon, and if you believe and find from the evidence that defendant in compliance with said contract*694 and the directions of plaintiff, constructed said boat for plaintiff and was and is ready and willing to deliver the same to plaintiff upon payment therefor in accordance with the terms of said contract, but plaintiff refused and still refuses to accept the same or to make payment therefor, then plaintiff is not entitled to recover of defendant any amount paid by him on account of the contract price of said boat and defendant is entitled to recover of plaintiff the difference between the contract price and the amounts received by it from plaintiff.”
Plaintiff duly objected and excepted to the giving of this instruction. This is the only instruction asked by or given at the instance of defendant.
The jury returned a verdict in favor of defendant on plaintiff’s cause of action and in favor of defendant on its counterclaim, assessing its damage at $3300. After interposing a motion for new trial which was overruled and exceptions saved, plaintiff has duly perfected an appeal to this court.
The learned counsel for appellant make six assignments of error. The first and second are substantially to the same effect, namely, that the jury had totally disregarded the evidence as to what was a reasonable time for completion of the boat under the contract and in that respect had disregarded the instruction of the court as to it being necessary for defendant, to maintain its counterclaim, to show that the boat had been finished within a reasonable time. The third and fourth count on the refusal of the court to submit to the jury as a question of fact the question of whether defendant, a foreign corporation, had been doing business in this state during the time averred, and that this matter should have been submitted to the jury under proper instructions and that the refusal of the court to give the two instructions covering this matter was reversible error, plaintiff complaining that by the refusal of these instructions he has been prevented from pre
Under the first and second assignments, it is argued-that while the court correctly instructed the jury that they must find that the boat was constructed in a reasonable time and correctly defined the words “reasonable time,” that the jury had totally disregarded these instructions, as the evidence showed beyond question that the boat could have been finished within ten weeks or three months and that no evidence contradicted this. It is true that the testimony introduced by plaintiff, and not contradicted by defendant, was that a boat of the kind and dimensions contracted for could then, in 1906, have ordinarily been constructed in that time. The trouble as applied to the case is, however, that
The third and fourth assignments, going to the fact of defendant being a foreign corporation transacting
Coming to the material assignments, the fifth and sixth, 'that error was made in giving the instruction asked by defendant as to the measure of damages, we are unable to sustain them. The law is so well stated and the cases so fully compiled by Judge Goode, speaking for this court, in the case of St. Louis Range Co. v. Kline-Drummond Mercantile Co., 120 Mo. App. 438, 96 S. W. 1040, as to the remedies of the seller and the measure of damages, that it is hardly necessary to do more than refer to that case for the determination of this point here under consideration. Judge Goode says, at page 447: “If the buyer of personalty refuses to accept the subject-matter of the bargain when tendered by the seller in proper condition and at the proper time and place, the law allows the seller several modes of redress. If the contract has been so far performed by the seller that the property is ready for delivery before he has notice or knowledge of the buyer’s intention to decline acceptance, he may treat the property as belonging to the buyer, hold it subject to the latter’s order and recover the full agreed price; or he may sell it for the buyer’s account, taking the requisite steps to protect the latter’s interest and get the best price obtainable, and then recover the difference between the proceeds of the sale and the agreed price;
The case at bar was tried and submitted to the jury, so far as defendant in the case is concerned, on the first theory above stated by Judge Goode, and the plaintiff at the trial presented no other theory. The instruction asked by and given at the instance of defendant is an absolutely correct statement of the law as applied to the case as made by the counterclaim, and as accepted by the plaintiff himself. It was correct under the facts in the case. There was evidence in this case tending to show that defendant, in compliance with the terms of the contract and the directions of plaintiff, had constructed the boat for plaintiff, and was ready and willing to deliver it to him upon payment therefor in accordance with the terms of the contract, and that plaintiff refused and still refuses to accept it or to make payment therefor. If the jury found these facts to be true, of which there was evidence before them, the court correctly told the jury by this instruction that plaintiff was not only not entitled to recover of defendant the amount paid by him on account of the contract price of the boat but that defendant was entitled to recover of plaintiff the differences between the contract price and the amounts received by it from plaintiff.
Plaintiff’s own instructions tacitly admitted that the boat had been completed according to contract, plaintiff contending he was not liable for the balance of the contract price and was entitled to recover back what he had paid, not because the boat had not been completed, but because the boat had not been completed within a reasonable time. In the argument
Counsel for appellant cite us to two cases which they claim to be the latest controlling authority in our state on the matter of the measure of damages; one that of Brown v. Trinidad Asphalt Mfg. Co., 210 Mo. 260, 109 S. W. 22; the other that of Moran Bolt & Nut Mfg. Co., v. St. Louis Car Co., 210 Mo. 715, 109 S. W. 47. Nothing in the decision in either of these cases is contrary to the instruction given by the court at the instance of defendant in this case. In both cases plaintiffs chose to resort to the third remedy referred to by Judge Goode in Range Co. v. Mercantile Co., supra; that is, chose to treat the sale as ended by the buyer’s default, and the property .still remaining in the seller, to sue for the actual loss sustained. In such case, the measure of damage is the difference between the agreed price and the market price. The decision in Range Co. v. Mer
The facts in the case at bar are in some respects very much like those in Frederick v. Willoughby, 136 Mo. App. 244, 116 S. W. 1109. There Judge Johnson, speaking for the Kansas City Court of Appeals, referring to a letter from the defendant to the plaintiff, said that it expressed a courteous but unconditional and unequivocal determination not to receive the article being manufactured for him by plaintiff under contract between them, and that this letter and refusal to receive constituted a breach of the contract. So was the "letter of December 26th from plaintiff to this defendant. Continuing, Judge Johnson says (l. c. 245) : “If the defendant, as the evidence of plaintiff tends to show, subsequently withdrew the countermand with the consent of plaintiff and plaintiff then shipped the refrigerator in accordance with the terms of the contract, this suit was properly brought and plaintiff should recover judgment for the stipulated purchase price.” There was evidence in the case at bar that this plaintiff had by his acts withdrawn the refusal. Furthermore, while in the case at bar the boat was not shipped, there is evidence, as we have before noted, tending to show that defendant stood ready to ship it when notified by plaintiff that he was ready to receive it. Defendant pleads this, in effect pleading that it holds the boat for plain-' tiff. This was all that defendant could do or was bound to do. [Black River Lumber Co. v. Warner, supra.] Citing Catalogue Co. v. Car Co., 120 Mo. App. 575, 97 S. W. 231, and Cole v. Armour, 154 Mo. 333, 55 S. W. 476, in support, it is decided by the Kansas City Court of Appeals, in line with what we hold to be the correct rule, that in an action to recover the contract price, neither evidence of the amount expended in part performance of the contract nor evidence of the profit plaintiff would have made on a full performance, would have been admissible or recoverable in this suit as brought.
Counsel for respondent attack the abstract for various assigned errors, three of their six points, nine out of twenty-nine pages of argument, being devoted to this.
Tbe judgment of tbe circuit court is affirmed.