273 Mo. 142 | Mo. | 1918
Lead Opinion
This is an action brought in the cir-r cuit court of Clay County, Missouri, on May 7, 1913, to recover the value of certain personal property belonging to plaintiff and which, it is alleged, was con
The opinion of the Kansas City Court of Appeals, as well as the reason for certifying the case to this court, will be found reported in 171 S. W. 944. We deem it unnecessary to set out the opinion of the Court of Appeals herein, but the same may be considered as published supra, in connection with the supplemental suggestions made by us in respect to the case.
The original agreement between plaintiff and the Excelsior Springs Bottling Company, or Henry Ettenson, dated February 11, 1909, contemplated a sale by plaintiff of four pieces of machinery, of the estimated value of $1800. This agreement was reduced to writing and signed by said parties. It, contained, among, other things, the following:
4‘Party of the first part retains title of the property until fully paid in cash. This agreement is not binding on the party of the first part until approved by its own office at Milwaukee, Wisconsin.”
There was no formal acceptance of the order sent to Ettenson from .plaintiff’s office at Milwaukee. Two of the machines described in the original agreement were not of plaintiff’s manufacture. On March 6, 1909, it wrote Ettenson that it could not furnish the two machines above mentioned.
Upon the cross-examination of M. M. Coakley, by Mr. Moore, counsel for defendant, she testified as follows:
4 4 Q. How did it come the labeler and the Eick washer were not shipped? A. As I recall it, the Excelsior Springs Bottling Company cancelled the order for the Eick washer and the labeler after they placed this contract. . . .
44Q. But at any rate it was agreed on before the articles that you did ship were billed out? A. That we were to accept the cancellation?
44Q. Yes. A. Yes, it vtould not be anything we would probably dispute.”
This testimony, thus brought out by counsel for defendant, was not objected to, nor did defendant’s counsel ask to have it withdrawn after showing that the correspondence between the parties was in writing. We do not. agree with counsel-that any letter was introduced in evidence contradicting this testimony. On the contrary, it is in line with plaintiff’s letter of March
‘ ‘We are just in receipt of your statement for $962.75 which should be $900, as that is our contract price.' . . . We will not pay it until the machine has been tested. . . . We refer you to your contract, which says the money is to be paid after the machinery is installed.” (Italics ours)
The original agreement of February 11., 1909, contains the following:
“Said party of the second part hereby agrees to pay said party of the first part as the purchase price, the sum of one thousand and eight hundred no/100 . . . dollars, F. O. B. factories. Terms: % of this said sum to be paid 30 days after receipt of machines. % — 30 days — and the remaining in 60 days thereafter or 2% spot cash 10 days after installation of machines,” etc.
Taking into consideration the foregoing facts, as well as other circumstances pointed out in the opinion of the Court of Appeals, we are satisfied that the trial court had before it substantial evidence tending to show that both Ettenson and plaintiff understood, from the dealings between them, that the original agreement was modified as to above items, and that the title to said property actually delivered was to remain in plaintiff until paid for by the Excelsior Springs Bottling-Company, or Ettenson. The defendant having bought said property from the Excelsior Springs Bottling Com-
Defendant, in its original brief filed in the Kansas City Court of Appeals, said:
“Plaintiff recovered on the theory that it had, by contract, retained title to the machinery sold to Henry Ettenson, defendant’s grantor; that Ettenson annexed the machinery to a building which he then deeded to the defendant, and that such deed and defendant’s possession thereunder, constituted a conversion.”
We have held in the preceding proposition, that there was substantial evidence before the trial court to sustain plaintiff’s contention, that it was the owner of the property in controversy until paid for by defendant’s grantor. The question, as to whether the original agreement between the parties was modified by simply excluding two items of machinery, and leaving plaintiff the owner of the remaining items until paid for, was the main question in the case. Although a motion in arrest of judgment was filed in the trial court, on the ground that the petition failed to state a cause of action and because the judgment was erroneous, yet,
Speaking generally, the plaintiff is entitled to recover, if the defendant fails to answer. Yet if the parties go to trial and the case is heard by the court as though an answer had been filed, the plaintiff will not afterwards be permitted to take a judgment by default or for want of answer in the case. The same rule ap
On the facts disclosed by the record before us, we are of the opinion that the ruling of the Kansas City Court of Appeals on this subject was correct.
III. The conclusions reached by the Kansas City Court of Appeals herein, meet with our approval. The judgment of the trial court is accordingly affirmed.
PER CURIAM: — The foregoing opinion of Ratley, C., is adopted as the opinion of Court in Banc.
Concurrence Opinion
(concurring) — I concur in the result. The question discussed in the second paragraph is not, in my opinion, presented by the record. The petition in this ease is substantially the same as that considered in Warnick v. Baker, 42 Mo. App. 439, and should be held sufficient, in aid of the verdict, on the principle announced in that case. Baals v. Stewart, 109 Ind. 371; Kerner v. Boardman, 14 N. Y. Supp. 787, 133 N. Y. 539; and Brickley v. Walker, 68 Wis. 563, support the same conclusion.
