17 Mo. App. 283 | Mo. Ct. App. | 1885
delivered the'opinion of the court.
The plaintiff states in his petition that, on or about the [15th day of October, 1882, the defendants employed the .plaintiff to make certain patent articles of furniture according to a United States patent owned and controlled by defendant;'that the articles to be made by plaintiffs were to be finished and ready for delivery in the city of St. Louis to defendants on or before the 1st day of November, A. D., 1882; the articles and prices to be paid for the same were as follows : Here follows an enumeration of the articles and the prices, showing that the articles consisted of two kinds of cupboards or kitchen safes, the contract price for which was $3.20 and $2.05 each, respectively, .the aggregate number being 268 and the aggregate price $703.50. The petition then -states that the plaintiff' ¡furnished the material and manufactured said articles in a good and workmanlike manner, and tendered the same and offered to deliver the same to the defendants before the said first day of November, 1882, but that defendants refused the same. Wherefore plaintiff prays judgment, etc.
The defendants in their answer “admit that they employed the plaintiff to make for them certain articles of furniture of the kind named in the account set forth in 'the plaintiff’s petition, but they deny that they were to' 'be made according to any patent owned or controlled by the defendants; they deny that on or about the 15th day of October, 1882, or at any one time they employed, plaintiff to manufacture the cupboards contained in said.
. “And further answering, the defendants say that they did from time to time, during a long period of: time, as they were wanted by defendants, order from the plaintiff cupboards of the kind contained in the said1 account, and that said cupboards were so ordered from the plaintiff, under an agreement between the plaintiff and defendants, by which the plaintiff agreed to manufacture for defendants cupboards of the kind aforesaid, for an agreed price, and deliver the same when completed at defendants’ place of business in the city of St. Louis ; and defendants say that all cupboards so ordered by defendants from the plaintiff, and by him delivered as aforesaid, or tendered, were received by defendants and were fully paid for by defendants long prior to the institution of this suit.” -.
■ Upon the issues thus made up there was a trial before a jury, which resulted in a verdict and judgment in favor of the plaintiff for the amount claimed, with • interest.
' The plaintiff gave evidence tending to sustain fully ; the allegations of his petition; showing that the defend-. ants had, on or about-the 12th or 15th of October, 1882, given to him orders to make for them the 268 cupboards in question, one order being for 120 and the other order' for 148 cupboards; that they were to be done on or before the 1st of November, and ready for shipment on the cars; that he made them in accordance with the order in a good workmanlike manner, packed them for shipment, and then, before the 1st of November, notified the defendants that he had executed the order, and that he desired to deliver the goods; 'that they declined to
I. The first point which we shall consider relates to certain rulings of the circuit court in excluding evidence of payment by the defendants to the plaintiff of certain invoices of goods of the kind sued for, between the 12th of October and the 25th of November, 1882. The answer of the defendants, it will be remembered, denies the making of any contract with the plaintiff whereby the plaintiff was to make' the number of cupboards alleged in the petition, to be delivered on or before the first of November, but it seems that-they, ordered from' the plaintiff such cupboards of the kind named from time to time, under an agreement to pay him an agreed price for them when delivered, and 'that they had paid bim for all such cupboards so delivered or tendered to them by him prior to the institution of this suit. The plaintiff by a reply put this new matter in issue. Now, the plaintiff in his testimony stated that he- received the orders from the defendants to manufacture the safes in
II. The defendants offered instructions to the effect that if, by the terms of the contract, the articles which the plaintiff had agreed to manufacture were to be delivered by him to the defendants, either at a specified time or at their warehouse, then, in either case, it was the plaintiff’s duty to take the goods, when finished, to the defendants’ store or warehouse, and there deliver, or offer to deliver them to the defendants. The court refused these instructions, and in lieu thereof gave the following of its own motion: “If the jury believe from the evidence that the defendants employed plaintiff to make the cupboards specified in the petition, and at the prices therein specified, and that the agreement between the parties was that said cupboards were to be finished and ready for delivery to defendants in the city of St. Louis, on or before the 1st day of November, 1882, and if you further believe from the evidence that the plaintiff did manufacture such cupboards in a workmanlike manner and have them finished and ready for delivery at his place of business in the city of St. Louis, on or
III. Finally, it is contended tbat tbe verdict is not supported by tbe evidence. Tbis contention is based upon tbe following grounds : Tbe plaintiff, testifying in bis own behalf, on cross-examination stated: “When I got tbe orders of about October 12th or 15th, I bad no safes and cupboards of tbe kind tbat I bad been making for Mueller Bros, on band. I bad delivered all tbat I bad made under previous orders. After tbe orders of about tbe 12th or 15th of October, and between tbat time and tbe day of tbe fire, I got only three or four small orders averaging from 1 to 6 or 7, perhaps 12, safes or cupboards. Tbe first one of these small orders I got a few days after .November 1, 1882.” Tbe defendants .afterwards put in evidence the invoices above described, which the plaintiff bad rendered to them for safes manufactured by him and delivered-to them between tbe 12th -of October and the 25th of November, amounting to 301 safes in all. Tbe rendering of these invoices by the plaintiff to tbe defendants was not denied, but Lhe plaintiff in bis testimony given in rebuttal, gave tbe following explanation of them: “Tbe invoices read in evidence are for goods which Mueller Brothers got from me after
Now, in analyzing this testimony and considering the purport of it, it must be remembered that the question was not merely how many safes and cupboards were on hand in the plaintiff’s factory at the time of the fire, because the plaintiff may, for reasons of his own, have manufactured a large number in advance of orders from the defendants, which orders the testimony on both sides shows he had been continuously receiving and filling for a year and a half. But the inquiry was, what safes had the plaintiff on hand in his factory at the time of the fire which he had made for the defendants in pursuance of an actual order received from them, and which they had subsequently declined to allow him to deliver. In this regard one is struck with the wide s discrepancy between the testimony of the plaintiff, given on cross-examination in the course of his case, and what is shown by the invoices which the defendants subsequently proved, and the plaintiff subsequently admitted, that he had rendered to defendants for safes delivered to them between the 12fch of October and 29th of November, the former date being the earliest day fixed by his testimony as the date of his reception of the order from the defendants to manufacture the safes in controversy,