Hessig-Ellis Drug Co. v. Priesmeyer , 151 Mo. App. 484 ( 1910 )

BROADDUS, P. J.

This is an action on a written contract for the purchase price of a certain quantity of merchandise known as Mueo-Solvent. The plaintiff is a Tennessee corporation located at Memphis, engaged in the business of the manufacture and sale of said article as a medical compound. The defendant is a retail druggist doing business at Moberly, Missouri.

On the 14th day of April, 1908, plaintiff’s agent sold to defendant a quantity of said Mnco-Solvent at which time the said contract was entered into between the parties. The goods were shipped to Moberly, but defendant refused to receive them, and hence this suit.

The contract among its provisions contains one to the effect that, plaintiff agreed to cause said.' medicine to be advertised to the extent of 7500 to 10,-000 lines of agate measure in two Moberly daily papers, the Monitor and Democrat, divided between them within twelve months after said goods were to be delivered at Moberly, the same to be paid for by plaintiff; and one that the goods were to be delivered to defendant free on board the cars at Moberly. .

The record fails to disclose the date when the suit was commenced, but it does show that the amended petition on which the trial was had was filed at the June term of the court for 1910, and it may be inferred that the action was brought at that term, more than one year after date of the sale of the goods.- The goods arrived at Moberly April 28,1908, but defendant failed to receive them on the alleged reason that he had countermanded the order and that he could not handle them successfully. There was no publication in the Moberly papers of the goods -as provided for in the contract within one year- after the date of the contract. The freight had not been paid. The station agent of the railroad company testified that it was the custom in such cases for the consignee to pay the freight and then collect back off of the consignor.

A jury was waived and the case was tried before the court. The finding and judgment were for the defendant and plaintiff appealed. Various declarations of law were given and refused by the court which are not necessary to consider. The plaintiff having sued on his contract he must stand or. fall by its provisions. One of the important conditions of the contract was that it was to deliver to the defendant goods free on board the cars at Moberly, Missouri. Tins it did not do.

The delivery to the carrier under the terms of the contract was not a delivery to defendant. The carrier was the agent of plaintiff to deliver the goods to defendant. [Am. and Eng. Ency. of Law, pp. 1071, 1072 and cases cited.] And the fact that it was the custom of the consignee to pay the freight and deduct the same from the purchase price would not alter the rule and change the terms of the contract clearly expressed. [Wolff v. Campbell, 110 Mo. 114; Kimball v. Brawner, 47 Mo. 398; Keller v. Meyer, 74 Mo. App. 318; Smith v. Shell, 82 Mo. 215.] And there was no showing that plaintiff offered at any time to advertise the goods as the contract provided in the Moberly papers. Not having complied with the terms of its contract it was not entitled to recover upon it. Affirmed.

All concur.