Pittsburg Steel Co. v. Cottengin
Pittsburg Steel Co. v. Cottengin
Opinion of the Court
This suit grew out of a dispute as to whether tbe plaintiff as seller or tbe defendant as buyer should pay tbe freight on certain wire fencing sold and shipped by plaintiff to defendant. Tbe defendant is a country merchant doing: business at Grove Springs, Missouri, but whose railroad station is Niangua, Missouri, and plaintiff’s business and location is indicated by its corporate name. Tbe terms of tbe sale are shown by a written order or contract signed
The evidence abundantly shows that the real agreement made between the defendant and plaintiff’s salesman was that the plaintiff would pay the freight. If the evidence showing this real agreement is admissible, then the verdict is abundantly sustained. When the goods arrived at the local railroad station and defendant found the freight was not prepaid he refused to receive the same and the car stood on the track several days. Thereupon plaintiff’s salesman, the same one who had taken the order originally, explained to him that while the agreement was that the plaintiff should pay the freight, yet that defendant should pay the same to the railroad, receive the goods and on sending in the freight bill the amount so paid would be credited on the purchase price. The defendant thereupon did this. This later arrangement is spoken of during the trial as a new agreement on the part of plaintiff to pay this freight and is sought to be repudiated by plaintiff on the ground that this salesman had no authority to make such agreement or to change the written contract, as his authority ended with his taking the order and transmitting it to the plaintiff. [Groneweg & Co. v. Estes, 144 Mo. App. 418, 128 S. W. 786.] On the other hand, defendant contends that as the salesman had authority to sell goods, fix prices, etc., he would have power to contract with reference to the payment of the freight
But we think it is apparent that plaintiff’s selling agent and the defendant were not making or .intending to make a new contract or to modify the old one with reference to the payment of this freight. Defendant was maintaining that the original written order for the goods provided for plaintiff paying the freight and that he would not accept same on any other terms. According to defendant’s evidence, the salesman conceded that such was the original contract and he merely induced defendant to accept the goods by paying the. freight as so much of the purchase price and to be credited thereon on sending in the freight bill — a common method of doing business when the freight is to be paid by the shipper. There was therefore no new or modified contract made or attempted to be made and the selling agent’s authority to make one is not material.
The original contract is in writing and it is contended by plaintiff that it shows on its face that de
As plaintiff is the appellant, it is incumbent on it to so present its case to this court as to show that the contract in question is such as it claims, that is, that it provides in unambiguous terms that defendant had to pay the freight. We find, however, that while this case is brought here on what is known as the short form, plaintiff’s abstract of the record nowhere sets out a copy of the contract order relied on or even the substance thereof but refers us to the “bill of exceptions” for such information. The rules of this court (see Rule Fifteen) and of all the other appellate courts of this State provide, and necessarily so for an intelligent procedure on appeals, that the abstract of the record shall ‘ ‘ set forth so much of the record as is necessary to a full and complete understanding of all the questions presented to this court for decision, ’ ’ and we cannot be referred to the original bill of exceptions for such information. [Merrill v. Central Trust Co., 46 Mo. App. 236, 242; Coleman v. Roberts, 214 Mo. 634, 114 S. W. 39; Sonnenfeld v. Rosenthal, 247 Mo. 238, 265, 152 S. W. 318; Strother v. Barrow, 246 Mo. 241, 254, 151 S. W. 960.] The respondent, however, has in a manner aided the appellant by setting forth in an addi
The order for the goods in question seems to have been written in technical and abbreviated mercantile terms not easily understood by us and perhaps not by defendant, a country merchant, and he so testified. We surmise that the difficulty of understanding and reproducing this order in an intelligible form is the reason appellant did not attempt to do so in his abstract but he has not taken the proper steps to bring the original here; if indeed that would aid the matter, of which we have serious doubts. It is shown that at the end of the order and immediately preceding the defendant’s signature are the words “All above F. O. B. Niangua,” and that Niangua is the railway station to which the goods were shipped for defendant. It also appears that the order was made out on a rather lengthy and comprehensive blank form, with the abbreviation “F. O. B.” appearing in several places in the order blank but generally in connection with classes of goods not contained in this particular sale and no place is named in connection therewith. In one place, however, this line occurs: “Fencing 74 1-2 per cent off list F. O. B. Pbg.,” the “Pbg.” being in pencil. This it is claimed means F. O'. B. Pittsburg, and charged defendant with the payment of the freight from Pitts-burg, the initial point of the shipment. It should be here said that there are several other classes of goods covered by this order and on them plaintiff concedes that it was to pay the freight to Niangua, its contention being, as we understand it, that the words “All above F. O'. B. Niangua” apply only to the goods other than fencing. The defendant testified that he understood the meaning of F. O. B. and correctly interpreted “F. O. B. Niangua” to mean that plaintiff would deliver the goods free at Niangua. He says he noticed. the words, just preceding where he signed, “All above
The jury under a proper instruction found that the real contract of the parties was that plaintiff was to pay the item of freight and hence cannot collect same from defendant. All the errors complained of relate to this proposition and need not be noticed further. It results that the judgment is affirmed.
Case-law data current through December 31, 2025. Source: CourtListener bulk data.