131 Mo. App. 520 | Mo. Ct. App. | 1908
In the year 1904 this plaintiff was engaged at Pascóla in Pemiscot county, in loading logs for a sawmill known as the Lewis mill. He needed in the work, which was done in the main by derricks, a good deal of wire rope, steel blocks and wire rope clamps. Having occasion to purchase such articles he arranged with John Powell to go to Memphis and buy
It is contended plaintiff, allowing him the benefit of all he alleged and proved, showed no ground of recovery, and this position requires careful attention. The petition alleges defendant promised and agreed to sell the goods at as low prices as they could be bought for from F. C. Atkins & Co. of Memphis, or any other dealer in such goods in said city, or any other market. The evidence varied from this averment, as both Powell, who made the contract with Dorroh, and Dorroh himself, swore the latter agreed to furnish the goods as cheaply as they could be bought anywhere not mentioning F. C. Atkins & Co. or other dealers in Memphis. We regard this as a variance instead of a failure of proof, because the agreement to sell as cheaply as the goods could be bought “in any other market,” stated in the petition, is equivalent to the agreement proved to sell as cheaply as they could be bought anywhere. But the arrangement proved was not a sale, because an essential element of a sale is a money price, either fixed by an agreement between the buyer and seller, or capable of
Though this agreement would have been treated as invalid as long as it remained executory, it was executed by the parties and the case must be disposed of with reference to this fact. When a sale transaction which is incomplete as a contract in consequence of the price being left uncertain, is carried into execution by delivery of the article sold, the law treats the transaction as a sale for the reasonable value of the article, and this value can be recovered. [1 Tiedeman, Sales, sec. 47; Deck’s Admr. v. Feld, 38 Mo. App. 674; Benjamin, Sales, 146.] It follows defendant would have been entitled to collect the reasonable value of the merchandise sold to plaintiff after it had been delivered and appropriated; and this, no doubt, was what plaintiff and his agent understood Horroh’s agreement to mean; not that, according to its literal import, plaintiff might claim a deduction from the prices charged, if, perchance, he learned some dealer somewhere would have made lower prices. But plaintiff paid for the goods and says he was induced by fraud to pay much more than the agreed price, which, in view of the vagueness of the stipulation, must be considered the reasonable worth of the different articles. On such facts, proof of deceit and fraud whereby plaintiff was damaged, would lay defendant liable in an action of tort; and the fraud might be Avorked by conduct as well as by words. [1 Bigelow, Fraud, 467; 14 Am. and Eng. Ency. Law (2 Ed.), 30; 20 Cyc. 15; Leonard v. Springer, 197 Ill. 532.] The testimony for plaintiff inclines to prove Horroh induced PoAvell to rely on the former’s observing, in good faith, the promise to charge no higher prices than the goods could be bought for elsewhere, and that plaintiff, in settling with Spangler, paid defend
But though plaintiff charges defendant with fraud,
As there is no dispute between the witnesses touching the terms of the agreement entered into by Powers and Dorroh, and as this agreement was, in legal effect, to furnish the goods at their reasonable value, the instructions should be framed so as to allow a recovery of the amount, if any, paid by plaintiff above the reasonable value at the time and place of sale. If any evidence is adduced to show plaintiff paid for them after he had learned the prices charged were unreasonable, this evidence should be submitted as tending to establish a defense. It would be better to amend the petition so it might more clearly appear whether plaintiff is suing in contract or in tort.
The judgment is reversed and the cause remanded.