136 Mo. App. 176 | Mo. Ct. App. | 1909
Lead Opinion
The defendant, a company dealing in lumber, entered into a contract with plaintiff, a company manufacturing lumber from logs, for-the purchase of a lot of lumber. The contract called for five to ten cars, each, of maple and elm lumber of a certain description. This contract was the result of correspondence. Plaintiff answered a circular letter of defendant seeking the purchase of lumber, in which it asked the price defendant would pay, its terms, etc.
This suit is for the value of the two cars shipped and defendant has filed a counterclaim for damages for failure of plaintiff to fulfill the terms of the original contract. Plaintiff denies the right of defendant to any counterclaim on the original contract, as that contract has been superseded by a subsequent one, the obligations of which plaintiff is ready and willing to perform. The question for determination is whether or not the substituted agreement has a valid consideration and upon this determination rests the rights of the parties. It is contended by plaintiff that a bona fide dispute being settled by the substituted agreement constituted a sufficient consideration for it.
Applying the rule of law that there must be an actual bona fide claim upon a colorable right, we believe that the claim of plaintiff was not made under color of right, nor was it bona fide. The dispute arose under the original contract and, to construe this contract, we must look at it as the parties did at its making and in their controversy about it. Conceding the original contract is partly embraced in the letters (as was claimed by
And, evén had we determined that the right to cancel did exist under the contract, or there was doubt about its existence, plaintiff would have no occasion for its exercise except when inspection Avas too severe. If we find the severity of inspection was not the cause
Plaintiff says there was a dispute as to right of defendant to reject mill culls and that the settlement of this furnished consideration for the substituted agreement. We are not able to find that there was any dispute of this nature between the parties, and, if there was, plaintiff in its brief in the trial court failed to mention and to rely on it. He certainly cannot now ask our attention to it.
Plaintiff in his motion in arrest of judgment alleged that the counterclaim of defendant on its face failed
Plaintiff alleges also that !the counterclaim did not state a cause of action for the further reason that defendant failed to state willingness and readiness to perform its part of the contract. This is not an action for specific performance of a contract, but for damages for the violation of one. The plaintiff having notified defendant that it could not comply with its contract and having repudiated the same, there was no obligation upon the part of defendant to comply on its part. The defendant had only one remedy and that was an action for damages on the contract. • The plaintiff’s authorities on the question have no application to this kind of an action.
Affirmed.
Rehearing
ON MOTION FOR REHEARING.
Plaintiff or appellant now insists that we overlooked his point that there was a consideration for the substituted agreement in that defendant acquired a valuable right it had not possessed under the original contract, viz., the right to inspection on its part, which inspection was to be final. The proposition of the substituted agreement was “We will ship on your inspection all the maple and elm we have on hand, provided you will consider the order filled.” Defendant wrote to learn the quantity on hand and received a reply promptly. Defendant, on May 17th, wrote, “Your pro
It is said that the substituted agreement confers upon the defendant the right to inspect the material and that its inspection would be final. The right claimed to be conferred is based upon the words, “on your inspection.” Whatever might be the meaning of this expression without any qualification and under the circumstances of the case is of no importance, as in the defendant’s letter of May 17th the construction plaintiff places upon it is clearly negatived. It is apparent in that letter that defendant did not know it possessed such a valuable right. And plaintiff acquiesced in the views of defendant so far as the correspondence indicates; and the contract is comprised in the correspondence.
Motion overruled.