Opinion
No. 6993.
November 13, 1951.
APPEAL FROM THE CIRCUIT COURT, JASPER COUNTY, WOODSON OLDHAM, J.
Max Patten, Jr., Roy Coyne, Joplin, for appellant.
R. A. Esterly, Carthage, for respondent.
Suit on an account. From a judgment for plaintiff in the sum of $1760.18, the defendant appealed.
Defendant's answer admitted the parties were corporations and denied all else.
In a counterclaim defendant alleged that it ordered and received the merchandise, which was washing compound, and that plaintiff warranted it to be in first class condition, "as good as any other compound on the market and would not deteriorate or lose its strength" and that plaintiff agreed, when the merchandise was delivered to defendant's San Antonio outlet, to provide a salesman to demonstrate and sell the merchandise in conjunction with the salesmen hired by defendant, all of which plaintiff failed to do. That upon such failure, defendant tendered back the merchandise and finally stored it in a public warehouse at plaintiff's expense. That by reason of plaintiff's failure to furnish a salesman, defendant was damaged in the total sum of $1831.41, for which judgment was prayed.
The allegations of the counterclaim were denied by reply.
We will, for clarity, refer to the parties as plaintiff and defendant.
The merchandise sold was thirty barrels and 17 kegs of a washing and cleaning compound known as Drew Tergent Nos. 3 and 7. This merchandise was shipped from the Kansas City warehouse of plaintiff to defendant's warehouse at San Antonio, where it arrived about August 1, 1947.
At the trial defendant offered in evidence a keg and its contents. It was one of the kegs of the shipment, and had been stored at San Antonio for approximately three years and then transported to Carthage, Missouri, to be used as evidence in the trial. Defendant's witnesses testified that this keg had never been opened, that they knew nothing about its contents either at the time it was received the first of August, 1947, or three years later in Carthage, Missouri. The court sustained an objection to the introduction of the keg and contents in evidence and the opening of it before the jury. We think this decision was within the sound discretion of the court. Defendant's witnesses did not profess to know of their own knowledge what was in the keg or anything of its condition. As far as the evidence shows, it had never been opened since the day it was packed by the plaintiff. Whether it was in the same condition at the trial as it was upon delivery three years before, defendant did not know and did not pretend to know. Whether it was in perfect condition or whether it had become lumpy or completely deteriorated the witnesses did not know or pretend to know. It was merely one of the kegs that had been delivered three years before and for some reason had not been put in the warehouse for plaintiff. There was no evidence of a warranty by plaintiff, express or implied, that their produce — though perfect at the time of the san — would remain so in storage for three years. We think the court was justified in refusing to permit the defendant to open the keg, for the first time, in the presence of the jury, three years after its delivery on what was practically admitted to be an exploration for evidence.
The first objection made by defendant, after receipt of the merchandise was based solely on the failure of plaintiff to render proper sales assistance. Defendant endeavored to rescind its contract and in December, 1947, stored the product in a public warehouse at the expense of plaintiff. There was no evidence of deterioration of any of the product and we cannot see how its condition two and one-half years later would be material under these circumstances.
Defendant made the following offer of proof: "We want to make an offer. We offer the keg purporting to be one of the shipment received by the defendant company on August the first, 1947, that the said keg has been in the direct possession of the defendant company since its shipment from the plaintiff's warehouse in Kansas City, Missouri; that the keg has not been opened, as can be readily seen by all who desire to look at it, and that the contents have not been disturbed and are the same contents as shipped from the plaintiff's warehouse in Kansas City, Missouri; that the defendant offers to show those contents of this keg to this jury, and at this time makes an offer to introduce in evidence said keg and its contents."
This offer was refused. The evidence did not show and the offer did not state that the contents of this keg had become lumpy or had deteriorated. So far as the record shows, it could have been in the same condition then as of the day of packing or of shipment. In fact, the defendant did not pretend to know what the keg contained except that it was supposed to be washing compound. If we were to reverse the case on this point and the keg were opened at the next trial, it might prove to be in the same condition as represented by plaintiff and the reversal and the expense of another trial would be needless. To prevent situations like that, it is the law that an offer of proof must be made so the trial court and, if appealed, the appellate court, can understand what is sought to be shown. Ruschenberg v. Southern Electric R. Co., 161 Mo. 70, 61 S.W. 626, loc. cit. 628. Gardner v. Eldridge, 149 Mo.App. 210, loc cit. 217, 130 S.W. 403.
A reversal on this ground might place us in a similar position to the appellate court that reversed a case (absent an offer of proof) because the trial court refused to permit an answer to the question, "What did John Jones say?" On the second trial it was shown in answer to that question that he did not say anything.
If, in the offer of proof, defendant's counsel had proposed to show that plaintiff warranted the product to remain for three years or indefinitely in the same condition as at the time of the sale, and that the contents of the keg had deteriorated until it was less valuable or useless then we would have a different situation. But such is not the case here. We must hold against defendant on this assignment.
The evidence on the part of the plaintiff showed that in through its employee, Mr. Boynton, had completely fulfilled its contract relative to instructing the salesman as to the good features of the product and the arguments to be used in selling. Mr. Boynton had gone to San Antonio and superior and one-half days and later to Oklahoma City, at the request of defendant, from there to Dallas, San Antonio and the Rio Grande Valley. He had talked to office managers and agents of the defendant in endeavoring to fulfill plaintiff's obligations under the contract.
The evidence as to this matter on the part of the defendant was that he did not give his attention to the matter, that he promised to give adequate sales assistance and to actually sell the product and failed to do so and therefore had not complied with his agreement when justified defendant in rescinding. Upon this issue, the jury decided for the plaintiff and we are bound by their decision upon this question of fact.
However, defendant as one of its assignments of error objected to Mr. Boynton testifying to conversations with a Mr. Brooks, manager of the Oklahoma office of the defendant and father of its president; of conversations with Mr. E. W. Malang, manager of defendant's warehouse in San Antonio where the merchandise was stored and of Mr. Carl Allen, an employee of the defendant, who was sent by defendant to Oklahoma City to meet Mr. Boynton, helped sell some of the product in that vicinity and then transported him to Dallas and San Antonio for the purpose of instructing the salesman and creating an interest in the product.
Mr. Boynton testified that Mr. Brooks, at Oklahoma City, told him that he was not interested in selling plaintiff's product, but was pushing another brand and stated he would make no effort to sell the product of plaintiff. He further testified that Mr. Malang of the San Antonio warehouse was not interested in pushing the sales of plaintiff's product, but was interested in "Wyandotte" cleaners. When Malang would call a prospective customer about plaintiff's product, he would refer to it as "that high priced washing powder". Mr. Malang testified he was "hot under the collar because we got the stuff * * *."
Mr. Boynton testified further that Mr. Allen said that for years he had been selling Wyandotte cleaners and he thought it would look foolish for him to go now to his customers and sell the product of plaintiff and that he had made no effort up to the time they were in Dallas to sell any of it. There was no objection made to the alleged statements of Mr. Allen and that question is not before us for review. However, Mr. Allen testified he objected to plaintiff's product.
As to the testimony of conversations and acts of Mr. Brooks of Oklahoma City and Mr. Malang of San Antonio, we think they were clearly admissible as relating to a transaction then pending and to show a failure on the part of employees of defendant to co-operate with plaintiff's agent in pushing the sales of the product. It was a part of the res gestae, was explanatory of the reason the product had not been disposed of and the court did not err in admitting it. Murray v. De Luxe Motor Stages of Ill., Mo.App., 133 S.W.2d 1074. Brandtjen Kluge v. Hunter, 235 Mo.App. 909, 145 S.W.2d 1009, loc. cit. 1017. H. A. Johnson Co. v. Springfield Ice Refrigerating Co., 143 Mo.App. 441, 127 S.W. 692. Gaines v. Berkshire Life Ins. Co., 228 Mo.App. 319, 68 S.W.2d 905.
Defendant's third objection is to plaintiff's instruction No. I. This instruction is rather long and it would seem that it could have been shortened to some extent but the length of an instruction alone is not error. It is not "confusingly repetitious, vague, or conflicting." Siberell v. St. Louis, S.F.R.R. Co., 320 Mo. 916, 9 S.W.2d 912, 916.
Defendant further states that the instruction assumes that plaintiff and defendant revised their sales contract entered into on the 26th day of August. The evidence relating to this matter shows that Mr. Boynton, agent for plaintiff, went to San Antonio immediately after the receipt of the shipment at defendant's warehouse and spent four and one-half days assisting the agents of defendant in selling the product and enlightening them as to its good properties. This was not satisfactory to defendant, who remonstrated with plaintiff by letter dated August 15, 1947, alleging insufficient assistance.
On August 25, 1947, Mr. Boynton and a Mr. Peasback; Division Manager of plaintiff, called at the office of defendant in Joplin, Missouri, and arranged an agreeable schedule extending from September 2 to September 27 and covering Springfield and Joplin, Missouri, Austin, San Antonio and the Rio Grande Valley in Texas. This schedule was set out in a letter from plaintiff to defendant dated September 6, 1947 and according to plaintiff's testimony, was complied with as much as defendant and defendant's employees would permit. It is the existence of this new or modified agreement that defendant asserts was "assumed" by the court in Instruction No. I. We do not so read that instruction. It merely states that plaintiff contends such a new agreement was entered into and then directs the jury, "* * * if you find that on or about August 26, 1947, a new agreement concerning sales assistance was entered into by the parties and that plaintiff fully complied with this agreement so far as permitted to do so by defendant, if you so find, then you must find the issues on this point in favor of the plaintiff."
Clearly this left the matter to the discretion of the jury and was not an assumption by the court.
Defendant further challenges Instruction No. I on the measure of damages. The evidence showed that some of the product was sold by defendant in their Texas territory, but that it had paid plaintiff for none of it. The court in Instruction No. I told the jury that if it found that the plaintiff had fully lived up to the terms of the sales agreement with defendant and that the merchandise was of the "kind and quality as warranted", then their verdict should be for the plaintiff for the agreed purchase price with interest at 6% from November 1, 1947. We see nothing wrong with this declaration by the court.
The last objection to Instruction No. I by defendant is that the court told the jury that under the agreement though the jury found that plaintiff had agreed to furnish a material that would not deteriorate that plaintiff was required to furnish washing powder that would not deteriorate or lose its strength for a reasonable time only and not for three years after the receipt thereof by defendant. The facts are that the evidence does not show any deterioration of the product. The president of defendant testified that when the agreement was entered into he did not question the quality of the product and the only objection he had to it was that it was higher priced than the product they had been selling and that because of the inferior quality of labor used in Texas, (Mexican), employees would not take the time to follow directions but would use too much of it and make it more expensive. Furthermore, defendant's evidence showed that the fact that the product became lumpy did not affect its strength, but only made it more difficult to use. There was evidence however, that the lumps could be crushed and used if the employee would take the time. There being no contention in the evidence of any deterioration of the product, that rendered it useless, the part of this instruction objected to could not have injured defendant because it was immaterial whether it would have deteriorated at the end of a three year period.
The judgment of the trial court should be affirmed. It is so ordered.
BLAIR and McDOWELL, JJ., concur.