184 Mo. App. 577 | Mo. Ct. App. | 1914
Lead Opinion
Plaintiff sued to recover damages for failure of defendant to accept a car of onions. A trial to the court resulted in a judgment for defendant from which plaintiff appeals. A finding of facts was made by the trial court to which neither side objects. The material part of the testimony is documentary and uncontradicted oral evidence, so that there are only conclusions of law to be drawn therefrom. The defendant ordered from plaintiff, a produce merchant at Minneapolis, 250 crates of a designated kind of onion and enough additional of another kind to make ‘ ‘ lightest minimum car. ’ ’ The car was loaded by a representative of plaintiff in Texas with 494 crates, an excess in weight of over 4000 pounds, and shipped to defendant at Springfield, Mo.- A draft was drawn on defendant and sent to a bank there with bill of lading, consigning the car to plaintiff, attached covering the value of the entire shipment and freight which the defendant was to pay. Before ordering the car defendant inquired of the railroad officials and learned that a minimum car was 24000 pounds, which .the plaintiff also well understood. When the car arrived he learned of its excessive load above the minimum and immediately telegraphed plaintiff: “Can’t use car of onions.” The plaintiff sought to have defendant state more explicitly his reasons for refusal, but failing, a few days later had him interviewed personally when defendant gave as his reason the excessive quantity. The plaintiff then offered to reduce
The trial court gave good reasons for the judgment ; that the plaintiff: did not fulfill or offer to fulfill his contract, and that in offering to retake excess and reduce draft accordingly nothing was said about freight on the excess and hence, this was not an offer even then to comply with contract. “When the seller in filling an order sends more goods than the buyer has ordered, the buyer is under no legal obligation to accept any part of the goods.” [Lanesman v. Gumersell, 16 Mo. App. 459, 460 and Ruhl Clothing Co. v. Singleton, 161 Mo. App. 366, 371, 143 S. W. 529.] The defendant did not receive the shipment, hence it was not incumbent on him to offer to return it or to notify the plaintiff that he held the same subject to his order, because he did not. The only thing that can be said is that he might have been more explicit in his advice to the plaintiff that he would not accept the car, but the statement that he could not use the onions should have been as impressive on the plaintiff, who knew he had overloaded the car more than 4000 pounds, as if defendant had stated he would not use or accept same. The plaintiff testified as follows: “As far as the minimum between buyer and seller is concerned, there is a little liberality shown and we never have any objection given to a little over the minimum except when market conditions are weak and they wish to make that a technical excuse for rejection.” He, therefore, must have known that when the excess was so much more than “a little over the minimum” objections would be made. It is intimated by plaintiff that defendant’s real excuse for not accepting the shipment was on account of a declining market, but this might be suggested as a reason for plaintiff overloading the car.
The.judgment is affirmed.
Concurrence Opinion
CONCURRING OPINION.
For my purpose the facts are sufficiently stated in the opinions of my associates and need hot again be set forth except as they enter into and form a part of the discussion. It is because a dissenting opinion has been prepared that I desire to support the affirmance of the judgment in a separate opinion.
There are certain duties that courtesy require; certain others that politeness require; and many that are required as moral duties. But in the relations existing between or among individuals, courts cannot enforce judgments and take money from one and give it to another for a breach of any such duties unless the duty in question is one recognized as also a legal duty. With this kept in mind, I think the question for determination is easy of solution.
I shall first consider the cases cited in the dissenting opinion and distinguish them from the case at bar.
The ease of Pierson et al. v. Crooks et al., 115 N. Y. 539, quoted from in the dissenting opinion, discloses on examination that the questions reviewed were entirely different from the question here involved. There, the purchaser received the- goods and was suing to recover from the seller the amount paid together with his damages because of defective quality. The questions raised, as shown on page 546 of the report, were (1) as to where the inspection must take place;
In our case there is no claim that defendant did not act quickly enough because he did notify plaintiff on the very day that the invoice, and draft .with bill of lading attached reached Springfield, and though he might have gone and looked at the car (probably to inspect as to quality) on the fifteenth of the month, he could not be held to a knowledge that there was 4158 pounds in excess until he received the invoice and bill of lading disclosing that fact.
In the New York ease, supra, the court merely held, and rightly so, that a plaintiff who was a buyer could recover from a defendant who was a seller where the buyer had fulfilled all the duties of a buyer and when the seller had breached his contract.
But here we have a seller who admits that he breached his contract as to quantity, where quantity was a material element in the procuring of the contract ; nevertheless, in the face of that breach on -his part, he as plaintiff asks that he be permitted to make the buyer perform his side of the contract just as though the plaintiff had actually substantially fulfilled his agreement. The very reason why the plaintiff was permitted to recover in the New York case is the one that prevents the plaintiff’s recovery here. Before a plaintiff can recover for a defendant’s breach he must show that he (pláintiff) has performed or tendered a performance.
The question under discussion in the case of Pierce Steam Heating Co. v. Siegel Gas Fixture Co., 60 Mo. App. 148, was as to the necessity of a rejection and the time within which the buyer, must make it.
The defendant in our case certainly acted hastily enough as he sent a telegram to the plaintiff on the first day that the papers came to him advising him of the number of pounds shipped. No one would expect him, between the 15th and 18th of the month, to
The case of Sutton v. Risser (Iowa), 74. N. W. 23, and that of Knox v. Schoenthal, 13 N. Y. Supp. 7, are not authorities applicable here, for in those two cases the buyer in rejecting gave one reason which on the trial was abandoned as a defense and another set up in the answer instead, and the holding' correctly sustained the view that the buyer, having given a reason must stand or fall with it, and that having given one was a waiver of all others which would estop the buyer from setting up any other.
A distinction must be borne in-mind between those cases where the goods are received by and are in the
The bill of lading in our cáse was accompanied by a sight draft which had to be paid before tlie title or control of the goods ever passed out of the seller. [See Burgess v. Railroad, 176 Mo. App. 257, 161 S. W. 858,]
Another point to be considered in connection with the cases,involving the question before us: Where .the buyer does some act, or in giving some reason for rejection, misleads the seller and causes him to do something or refrain from doing something to protect himself, the buyer may become bound. But in our case there is no showing whatever that “Can’t use car onions ’ ’ misled the plaintiff in the least or caused him to change his course of dealing- to his damage.
The case of Landesman v. Gumersell, 16 Mo. App. 459, cited as an authority for reversing this judgment, is, on the contrary, a very strong authority for affirming it. The cause of action there against the buyer, as shown by the last half of the last page of the opinion, was not to require him to pay damages for refusing* to comply with his contract which the seller had also breached, but liability was put on the ground that in making a mistake in a return of the goods to the seller the buyer had negligently executed a voluntary bailment. If that case is to be considered an authority for reversal in this, what are we to do with the opening statement of that opinion beginning on page 46111t is as follows: ‘ ‘ When the seller in filling an order sends more goods than the buyer has ordered, the buyer is under no legal obligation to accept any part of the goods. [Cases cited.] This seems to be the settled law, and was recognized as such by the trial court in this cause in its instruction to the jury.” And this further statement in that opinion on the same page: “In the case now before us goods in excess of
In our case, the only way defendant could get possession or control of the onions was to pay the draft, and thus be forced to' execute, on his part, a contract he never made.
It is true that plaintiff wrote a letter in Minneapolis, Minn., dated May 13, 1912, in which defendant was advised that the car shipped would contain 494 crates, but the record does not show when this letter was received by defendant. However, it is but fair to assume that it took this letter the same length of time to reach Springfield as was required for other correspondence in the case mailed from the same place to reach Springfield, which, under the evidence, was some three days in transmission. Therefore, this letter was received by the defendant either on the 16th or 17th — not more than two days before his telegram of rejection was sent. Besides, the letter did not disclose that there were 28,158 pounds of onions in the car, or 4158 pounds more than the contract called for. The order of the plaintiff was for 250 crates of crystal wax onions, “balance yellow,” “lightest mim'mnm car.” There is evidence in the record that the crates vary in weight, and this is known among commission men. It is conceded that a “minimum car” is 24,000 pounds. And while the plaintiff’s letter of May 13, 1912, did advise defendant that there were 494 crates in the car, defendant should not be condemned for not concluding therefrom, immediately on its receipt, that
The rule is thus aptly stated in II Mecbem on Sales, Sec. 1157: “Not only must the article delivered correspond in hind with that agreed upon, but it must also correspond in amount. Where a specific quantity or number is agreed upon, to be delivered at one time, that quantity or number must be delivered, and the seller will not perform his undertaking if he delivers either more or less.” Again (Sec. 1158 Id.): “Where the seller delivers or tenders delivery of a greater quantity than was agreed upon, the buyer may. refuse to receive it and reject the whole.”
In 5 Elliott on Contracts, section 5049, the rule is-stated in this language: “Where the seller delivers a quantity of goods larger than that contracted for, the buyer, in the absence of any controlling usage, special agreement or course of dealing between the parties, may accept the goods included in the contract and reject the rest, or he may reject the whole.”
In the leading case of Barton v. Kane, 17 Wis. 38, 84 Am. Dec. 728, on page 734 the judge writing the opinion malíes the distinction for requirement of the reason of objection where the quality is defective and where the quantity is in excess or less than that contracted for. It is put on the ¡ground that where one knowingly sends more or less goods than ordered he is guilty of intentional violation of his contract
The case of Norrington v. Wright, 115 U. S. 188, 29 L. Ed. 366, referred to in many textbooks, contains the following excerpts applicable here: “The seller is bound to deliver the quantity stipulated, and had no right either to compel the buyer to accept a less quantity, or to. require him to select part out of a great quantity; and when the goods are to be shipped in certain proportions monthly, the seller’s failure to ship the required quantity in the first month gives the buyer the same right to rescind the whole contract that he would have had if it had been agreed that all the goods should have been delivered at once.” “ ‘The defendants refused to accept the first shipment, because, as they say, it was not a performance, but a breach of the contract. Where parties have made an agreement for themselves, the courts ought not to make another for them. 'Here they say that in the events that have happened one-fourth shall be shipped in each month, and we cannot say that they meant to accept any other quantity. At the outset, the plaintiffs failed to tender the quantity according to the contract; they tendered a much less quantity. The defendants had a right to say that this was no performance of the contract, and they were no more bound to accept the short quantity than if a single delivery had been contracted for. ’ ’ ’ (Italics are ours.)
But plaintiff relies on his offer to reduce the draft and deliver 24,000 pounds. This offer was made some six or seven days after the car reached Springfield and after defendant had rejected the shipment and ordered onions from' another dealer. A sufficient answer to plaintiff’s contention is to say that plaintiff had already done what he claimed was a compliance
If the case is to go off on the “fair dealing theory,” I do not believe it is fair dealing to permit a seller to try his hand at working off something he had not sold, in the face of a falling market, and, when he is detected, come into court and complain because the buyer did not follow him up and make bim comply with his contract; fair dealing, in my judgment, would place that election with the buyer only. Courtesy and politeness might have demanded a more explicit rejection.
It is good law that where more is sent than is contracted for the buyer is to take the amount agreed upon provided he had not changed his position or been put to extra expense, delay or any extra burden. [2 Mechem on Sales, sec. 1158>, p. 1012.] But in the instant case, to take any amount, defendant must pay a draft drawn covering the value of the 4158 pounds not contracted for together with the additional freight charge.- And even on the second offer of the plaintiff the extra expense and the burden of extra freight was not reduced in the offer.
In the absence of anything that defendant did which caused the plaintiff to be misled or to change his position (and there is no such claim made in this case), it seems to me that the vital question we are to determine is, Does plaintiff make such a showing for himself that will entitle him to maintain this action? Did he substantially comply with his contract? If he did not, then his case must fail, even conceding
I do not think anyone will disagree with me in saying that in sending 4158 pounds of onion sets more than was contracted for was a substantial noncompliance, especially when in the course of the correspondence leading up to the contract the plaintiff knew that defendant at first wanted only a small quantity of onions, much less than a minimum carload, but that, on being advised that he would have to pay freight on a minimum carload anyway, he then placed his order to buy the “least minimum car.” The shipment contained 4158 pounds in excess — more than one-sixth of the original order, or seventeen and one-half per cent in excess. The plaintiff’s act brought the house down upon his own head. There is a maxim, based on a principle as effective in law as it operates in equity, whereby equity enjoins that he who comes into equity must come with clean hands; so, on the law side, this principle enjoins that he who contributes to his own injury cannot, complain, or, that he who voluntarily places himself in wrong, will be left there by'the law. Some learned judge has already expressed it in language which to me seems fitting, about like this: The law has no scales with which to determine whose wrongdoing weighed most in the compound that caused the mischief.
I concur in the opinion written by Roberts on, P. J., holding that plaintiff’s admitted breach places him beyond the aid of the law and that the judgment of the trial court should be affirmed.
Dissenting Opinion
I am compelled to dissent from the majority opinion in this case and as my dissent, would be meaningless without stating the grounds thereof, I shall do so briefly. I agree that the facts are not disputed but they are not fully stated. The plaintiff is really a commission merchant of Minneapolis, Minnesota, and bought the onions in question for defendant in Texas on a special order and had them there loaded in the car and shipped from Earedo, Texas, to Springfield, Missouri. The defendant knew this, as his preliminary inquiry was as to the price of Texas onions and his telegraph order was to buy for him the kinds designated. The car was loaded May 11, 1912, and on May 13th, the plaintiff so advised the defendant by letter and stated that the order contained 494 crates and that bill of lading and invoice would follow as soon as plaintiff received the proper papers from Texas. No reply was made to this, although the defendant says he knew the standard weight of a crate of onions to be fifty-seven pounds and that this amount was seventy crates in excess of a minimum car, 24,000 pounds, which he had ordered. The car arrived at Springfield on the fifteenth, and defendant at once inspected it without complaint. On the eighteenth, defendant received from plaintiff the invoice and notice from the local bank of the draft with bill of lading attached. This ¡gave him no additional information as to the weight or size of the car, giving only the number of crates. There is no evidence that the ear or onions were ever actually weighed, as the railroad took the crates at fifty-seven pounds each as a basis of freight charges and the draft was based on the prme per crate; and the court’s finding as to excess weight is based on the number of crates at fifty-seven pounds each. He then wired plaintiff four words: “Can’t use car onions.” This, to say the least, is am
The only reason given by the trial court in its finding of facts and conclusions of law for denying
The law should, and I think does, favor and promote fair dealing. No one can question but that defendant should, as between merchants dealing with each other in good faith, on the arrival of a car of onions shipped to him on his order from a point distant from the place of business of the seller, have informed the seller of the cause of its rejection by him. Had defendant done so,' the matter could and doubtless would have been rectified. The seller has rights in such cases and the buyer cannot reject a shipment of goods tendered to him on his order and say nothing or act in bad faith in giving his reasons for the rejection. When a buyer has made a contract to purchase certain goods to be shipped to him from a distant point and such goods come to him in the usual course of shipment and are tendered as in compliance with the contract, it becomes the duty of the purchaser to, in good faith and in a reasonable time, inspect the goods and, if he finds a valid reason for rejecting the same as being deficient in quantity or
Good faith requires a statement of the true reason for exercising the right of rejection, and a rejection on one ground is generally a waiver of any other grounds known to the purchaser. [35 Cyc. 213; 24 Ency. of Law (2 Ed.), 1092.] In Smith v. Pettee, 70 N. Y. 13, defendant refused to receive certain iron because shipped to him on a boat of a different name than that specified in the contract; later he claimed a deficiency in quality. The court said: “The defendants did not, on the tender of the iron to them, make-any objection to its quality, or that the quantity was deficient, but stood upon the ground that the name of the vessel differed from that written in their contract, and upon that contract only. Even in .their answer to the complaint in this action, they do not set up any fault in the iron tendered to them; but upon the trial. they gave evidence- that out of the 100 tons or thereabouts which arrived by the St. Christopher, seven or eight tons were of a quality not embraced in the contract, and they seek to avail themselves now of that fact. Technical answers might be given to this claim, but the best one is that it is not founded in good .faith. If the objection to receive the iron had been placed on the ground that among the 103 tons tendered there were eight which the defendants were not bound to accept, the plaintiffs could have separated these eight tons from the- general mass, and would still have performed their contract by tendering the ninety-five
The above cases may not be. “on all fours” in every. respect with the present case, nor do they need to be to announce correct principles of law. It is only claimed that they sustain the points on which they are cited.
It must be borne in mind that there were two tenders to defendant of the onions shipped in this ease. The first tender was of the car containing a larger amount than ordered. He could have acted on that only by paying the draft covering the excess. I agree that defendant had a right to reject the shipment for that reason, provided he had given prompt and proper notice to plaintiff of the rejection. The second tender of the onions was of the proper quantity, the excess to be removed by plaintiff’s agent and the draft reduced accordingly. Whatever delay there was in making this second tender was due to defendant’s repeated refusal to disclose the cause of his rejecting the car. Plaintiff acted by wire and made the second tender the very day he ascertained through the Springfield broker the cause of the rejection. The defendant rejected this second tender also, giving as his sole reason that he had ordered another car, which, as we have seen, the trial court found was countermanded and was no reason at all. Now defendant justified this last rejection on the failure of plaintiff to specifically offer to pay the excess freight — a reason not assigned by him
I may grant that the ..facts of a case might warrant or even compel a finding that the excess in quantity or deficiency in quality of the goods shipped might he so gross and outrageous that the shipper would he held to know that the buyer would not accept same and thus dispense with notice of the rejection and cause thereof. But, at most, that would be a question of fact in this case, as reasonable men might differ as to whether there might have been an honest mistake in conducting a large business, where much of the work is necessarily done by clerks and through other dealers at distant points, and plaintiff might have been in good faith in desiring to know why the car was not accepted. The trial court made no such finding against the plaintiff and we cannot uphold the judgment on a finding which we might think he ought to have made.
It seems to me that in both law and good morals the plaintiff is entitled to recover his loss.