BLAND, P. J.
(after stating the facts). — 1. Plaintiff makes the point that as the terms of the sale were for cash on delivery, and as defendant got possession of the tomatoes without complying with the terms of the contract, the title did not pass, and hence defendant’s possession was wrongful and plaintiff was entitled to recover, regardless of the counterclaim. It is the settled law in this State that when a sale of personal property is made for cash on delivery, the transaction is not complete and the title remains in the seller until the purchase price is paid, though possession is delivered to the buyer, unless payment is waived. [Southwestern Freight and Cotton Press Co. v. Stanard, 44 Mo. 71; Johnson-Brinkman Co. v. Central Bank, 116 Mo. 558, 22 S. W. 813; Commission Co. v. Railroad, 72 Mo. App. 437; Johnston v. Parrott & Barnes, 92 Mo. App. 199.] Payment of the purchase price of the tomatoes was not waived by plaintiff. The property was [507]*507his and lie was clearly entitled to its possession and to damages for the unlawful detention of the tomatoes.
2. The action was in tort and the question arises whether or not defendant was entitled to plead his counterclaim. The counterclaim arose out of the transaction set forth in the complaint and was connected with the subject-matter of the suit, and is allowable by the express provision of section 605, of the Code of Civil Procedure, and as defendant could have a several judgment for the subject pleaded in the complaint, we think the counterclaim was clearly allowable. [Miller v. Crigler, 83 Mo. App. 395; Bowman & Co. v. Lickey, 86 Mo. App. 47; Workman v. Warder, 28 Mo. App. 1; McCormick Harvesting Co. v. Hill, 104 Mo. App. 1. c. 556-7, 79 S. W. 745; Babb v. Talcott, 47 Mo. 343.]
3. What is the measure of defendant’s damages on his counterclaim? Certainly not anything for taking that from him to which he had no title, or right of possession, namely, the 218 cases of tomatoes. By replevying the 218 cases of tomatoes and refusing to deliver the number of cases he had obligated himself to deliver, there being no waiver of delivery, plaintiff breached his contract, and the measure of defendant’s damages on his counterclaim is the difference in the contract price of the tomatoes which plaintiff was obligated to deliver and their value at the date of the breach of the contract, less any damages plaintiff may have sustained by reason of the wrongful detention of the 218 cases by defendant. These views call for a reversal of the judgment and a remanding of the cause for new trial. It is so ordered.
All concur. Free access — add to your briefcase to read the full text and ask questions with AI