86 Kan. 355 | Kan. | 1912
The opinion of the court was delivered by
On August 30, 1906, plaintiff, Arthur Capper, and the defendant paper company entered into a written contract by which the latter agreed to.furnish, for use in the publication of the Topeka Capital during one year from October 1, 1906, to October i, 1907, 720 tons of paper with a leeway of 5 per cent over or under in quantity per year, the shipments to be at the rate of 60 tons per month. The plaintiff agreed to pay $2.12 a hundred pounds, f. o. b. Topeka, payment to be net cash 30 days from date of invoice in Chicago and New York exchange, a discount of 3 per cent to be allowed for payment within the thirty days. It was provided that in case of failure to pay any amounts due under the contract or to make settlement as provided the paper company might at its option cancel the contract. Shipments began October 1, 1906, and for some time more than 60 tons per month were sent by the paper company and its attention was called by the plaintiff to the fact of over-shipment, but all the amounts sent were accepted. Re
“I note all you state in regard to the discount which I advised you we could not allow, and while I appreciate what you say, I must now advise you that we can not allow in future these discounts unless invoice is settled for within the terms of the contract, and trust you will meet our views in this matter. Trusting if in need you will be able to secure a little paper for your wants until we can resume shipments, I remain,”
• On April 4 remittance was receipted for, the letter 'containing these words: “We have not taken into account any allowance for discount, as all of the invoices were past due.” On April 9 plaintiff wrote to know when the next car could be shipped, and on April 14 requested the same information by telegram, and on April 18 repeated the request. On April’ 19 the company wrote a letter containing the following:
“Owing to your repeated breaking of the contract under terms of settlement, we are forced to advise you of cancellation of our contract, and no more paper will be shipped under same. We have been very patient in regard to your settlements, and whereas the terms are 3 per cent for cash 30 days from date of invoice, you have been settling, on an average of 60 to .70 days against our protest, and we feel justified in our action.”
This action was begun to recover damages for breach of contract, the answer alleging the failure of the plaintiff to remit within 30 days and nonpayment of the 3 per cent, thereby justifying the cancellation of the contract; the reply alleging that the 30-day provision had been waived by the company, and that it canceled the contract for the reason that the price of paper had gone up, and that having accepted payments made after the contract time the company was es-topped to claim the right to cancel the contract.
When the dealings closed and when the suit was begun plaintiff owed about $1500 and the action was to recover the amount of damages claimed less this sum; but upon the trial, having been sued for the balance in the meantime, plaintiff amended his petition so as to include this amount. In a letter of June 25, 1908, the second vice president wrote:
“I fully appreciate how you feel in regard to our action of cancellation of contract, and don’t know that I blame you. I can only advise as far as our company is concerned, I was forced to this action by our mill,, and legally, as we had not a leg to stand on; had I not followed their instructions as their agent, my company could have been forced to have gone into the open market and purchased the paper to carry out your contract.”
The jury found in favor of the plaintiff, and the defendant appeals and urges that its objection to evidence under the petition and its demurrer to the evidence should have been sustained, that the trial court erred in reference to certain instructions and special questions, and in denying judgment on the findings and a new trial.
It is suggested that as an aggregate of more than sixty tons a month up to April 1 had been shipped and repeived, such reception amounted to a waiver of the right to complain on account of overshipment, and this
“The basis of such rule is that the buyer at the time of the breach presumably could have supplied himself with the goods at the time and place agreed upon for the delivery; and where such is not the case the rule does not apply.” (Vogt v. Schienebeck, 122 Wis. 491, syl. ¶ 7, 100 N. W. 820, 67 L. R. A. 756.)
The plaintiff was permitted to testify without objection that he went on the market and purchased paper, and that he got thirty-four tons of it at Kansas City. No attention seems to have been paid to the question of the market price at Topeka during the trial, either in the testimony or in the instructions offered or given. However, the court, at the defendant’s request, submitted question No. 23, asking the price at Topeka,
The court instructed that the contract required substantially sixty tons a month to be shipped. This was correct: The refusal to instruct that the acceptance of more a month amounted to a waiver was not prejudicial to the defendant,' as the plaintiff was not seeking to cancel the contract, but was suing because the defendant had canceled it.
The court instructed that if the plaintiff failed to make payments as provided in the contract and this provision had not been waived, the company had a right to cancel; but if the jury should find from the evidence that anything said or done under the contract induced plaintiff to believe that this condition was waived, the defendant would be estopped from afterwards claiming nonperformance. This is complained of as leaving it to the jury to determine whether or not there was a waiver, which is said to be a question of law. The instruction hardly bears this interpretation. .It was the same as telling the jury that if they found that the defendant had said or done anything which induced plaintiff to believe that it intended to continue shipments notwithstanding his delayed remittances, the defendant could not thereafter refuse shipments on account .of such delay. What the jury might conclude was thus said or done would be. more nearly a finding of fact than a conclusion of law, and we think the instruction was not materially prejudicial.
“Whether it (waiver) exists or not in the particular case upon trial is for the jury to decide, upon instructions by the court.” (Minor v. Edwards & Price, 12 Mo. 137, 139, 49 Am. Dec. 121.)
Whether there had been a waiver of proofs of loss, the evidence being conflicting, is a question for the jury.
“Whether there has been a waiver of the conditions of a contract is, where the question depends upon declarations or conduct, a question of fact for a jury.” (1 Thomp. Trials, § 1436.)
“Generally the court may, in its discretion, refuse to require the jury to state new facts showing why it finds in a particular way upon some very general question of fact stated by one of the parties.” (Foster v. Turner, 31 Kan. 58, syl. ¶ 1, 1 Pac. 145.)
(See, also, Matheney v. El Dorado, 82 Kan. 720, 109 Pac. 166.)
Counsel insist that plaintiff neither alleged nor proved full compliance with the contract on his part. An objection to evidence on this ground was properly overruled. (Howard v. Carter, 71 Kan. 85, 80 Pac. 61; Railway Co. v. Murphy, 75 Kan. 707, 90 Pac. 290.) Compliance on his part up to the time the defendant canceled the contract was proved, unless the delay in remitting was not shown to have been waived, but the jury in effect found that it had been waived. Proof of performance or of an offer to perform is generally held to be sufficient, and if the petition was deficient in allegation the question should have been raised by demurrer rather than by objection to testimony. Instead of demurring to the petition the defendant answered, setting up the alleged nonperformance on the part of
(For a discussion and decision of a question quite analogous, see Benefit Association v. Wood, 78 Kan. 812, 98 Pac. 219.)
The main question is the alleged justification of the cancellation. It is true that if plaintiff were in default as to his obligations under the contract, this would justify cancellation unless such default had been waived. (Lumber Co. v. Lumber Co. ante, p. 131, 119 Pac. 321; Lumber Co. v. Lumber Co., ante, p. 264, 120 Pac. 367.) However, the jury and the trial court concluded that the default had been waived, and the correspondence fully justifies such conclusion. Had there been no difficulty in getting supplies from the mill and in securing cars, the letters of the defendant in April show that the shipments would have continued. From the later letter, already quoted, it is plain that the paper company, instead of going into the market for paper, the price of which had risen, in order to carry out the terms of its contract, preferred to cancel, using as an excuse the very delay it had, by a continued course of conduct and by the letter of April 2, overlooked and waived. True, the letter of April 4 expresses an intention not to allow the discount, but it bears on its face no indication to retract from the position taken by the letter two days earlier, in which it was said: “We must do the best we can towards helping each other,” and “trusting if in need you will be able to secure a little paper for your wants until we can resume shipments, I remain — ”
The result reached by the trial court was in harmony with the facts and-with the law, and the judgment is affirmed.