74 Mo. App. 318 | Mo. Ct. App. | 1898
— In May, 1895, appellants were a limited corporation under the laws of the state of Louisiana, carrying on a wholesale grocery business at the city of Monroe in said state.
“May 15th 1895.
“Sold to J. M. Keller Co. (limited) for account Meyer & Bulte, the following' flour, delivered at Monroe, La.
500 bbls. Pride..........................................$2 70
100 “ Swan............................................... 2 90
“Terms 30 days, net. R. L. Evans.”
This sale was immediately telegraphed respondents, who on the same day (May 15) wired Evans that they could not accept his orders except at market prices. Respondents refused to deliver the flour, and appellants brought this suit for a breach of the contract, alleging substantial damages. The answer set up as a defense that the broker Evans had no authority to make the sale (as he made it), and that under a custom all such sales were subject to the approval of respondents and were not binding, until approved by them; also a conspiracy between Evans and the appellants to cheat and defraud respondents in the sale of the flour. The issues were submitted to the court without the intervention of a jury. The facts briefly stated are about as follows: At 12:04 p. m.-, May 14,1895, the respondents sent the following telegram to Evans: “R. L. Evans, Monroe,'La. Swan 290 — Pride 270 delivered. Quote Millsaps Cash. Méyer & Bulte.”
At 2 p. m. same day Meyer & Bulte telegraphed “R. L. Evans, Monroe, La., Swan Alley; Pelican Alloy; Pride, alive previous message an error.” The uncon
“Meyer & Bulte, Merchant Millers.
“St. Louis, May 17th 1897.
“J. M. Keller Co., Monroe, La.
“Gentlemen: — We are in receipt of letter from Mr. R. L. Evans ordering flour for you at prices not duly authorized. We regret to notify you that we can not recognize these instructions as bona fide orders, and have this day returned same to Mr. Evans, who will perhaps make a further explanation to you. We are,
• “Yours truly,
“Meyer & Bulte, per Bulte.”
“J. M. Keller Co., Ltd.
“Monroe, La., 5-21, 1895.
“Messrs. Meyer & Bulte, Saint Louis.
“Gentlemen: — We are in receipt of your favor of the 17th inst. and note its contents. In reply will say: we can prove that Mr. Evans is your agent and that you so introduced him to the trade here, stating further that any prices made by him would be filled by you; further he had your telegram in which you made the prices. If this was a mistake it was not our fault, and we should not be made to suffer for your errors, as we have sold part of this flour, depending on you to fill our order. We did not buy waiting to hear from you. We are entirely out of flour. We wish to state that we want only what is right in the matter and are deter*325 mined to have that, let cost be what it may. We think it would only be just and right that you should meet us half way in adjusting this matter. We therefore await a proposition from you, based on your ideas as to what is fair in your estimation. Awaiting yoqr early reply, we are,
“Truly yours,
“J. M. Keller Co. (Lim.)
“Per J. M. K., Pt.”
“Meyer & Bulte, Merchant Millers.
St. Louis, May 23rd, 1895.
“J. M. Iieller d Co., Monroe, La.
“Gentlemen: — We have your letter of the 21st and carefully note contents. In reply, wish to state that Mr. Evans is our broker, but we are not liable for any errors on his part. It is true we wired him prices which ranged a dollar per barrel less than was intended. This was purely an error and was discovered immediately, and was corrected by wire within an hour after the first message was sent. This mistake must have been evident to anyone dealing in flour. It would seem strange, and we think it would be difficult for any flour man to prove that he knew so little about the value of goods as not to be able to judge its price within a dollar per barrel, and it seems more strange to us that any reputable house should try to take advantage of such a matter. The correction was made so promptly that the error could not have damaged anyone who was acting in good faith. We regret that this has occurred, but our case is a clear one, and our conscience is not worrying us in the least. We, therefore, have no proposition to make. We hope, upon reconsidering the circumstances, you will accept our explanation as satisfactory. We are, yours truly,
“Meyer & Bulte, per Bulte.”
Respondent Meyer testified that R. L..Evans was the broker of Meyer & Bulte at Monroe, Louisiana, and represented them there. Slight evidence, over the objection of appellants, was offered tending' very slightly to prove that there was a custom at Monroe, Louisiana, among merchants, that flour merchants in St. Louis reserved the right to reject all orders taken for flour by agents or brokers, and that no sale was completed until approved by the St. Louis merchant for whom the sale was made. Appellants asked the following declarations of law which were refused:
instruction* damages. “The court sitting as a jury declares the law to be, that if it finds from the evidence that one R. L. Evans was the broker or agent of defendants at ^ Mty of Monroe in the state 0f Louisiana, during the month of May, 1895, and as such sold to plaintiff on or about the 15th day of May, 1895, 500 barrels of flour known as ‘Pride’ for the sum and price of $2.70 per barrel, and 100 barrels of flour known as ‘Swan’ for the sum and price of $2.90 per barrel, to be*327 delivered at the said city of Monroe, and to be paid for thirty days thereafter; and at the time of said sale said Evans had in his possession a telegram from defendants, quoting him the prices at which said flour should be sold, and said prices were $2.70 per barrel for ‘Pride’ and $2.90 per barrel for ‘Swan’ delivered at said city of Monroe, and that upon the faith of said telegram plaintiff purchased said flour. And if it further finds that defendants refused to deliver said flour to plaintiff for such price and upon such terms, and so notified plaintiff, then it will find for plaintiff and assess its damages at such sum, not to exceed the amount' claimed in plaintiff’s petition, as it may find from the evidence is the difference between the price at which said flour was sold and the price at which the same quantity and kind of flour could have been purchased for in said- city of Monroe, at the time plaintiff received notice from defendants that they would not deliver said flour; notwithstanding the court may further find that said telegram was a mistake made by defendants, which they afterward corrected, unless it finds that such correction was known to plaintiff at the time of said sale.”
“If the court sitting as a jury finds from the evidence that the contract of sale mentioned in plaintiff’s petition was entered into between plaintiff and defendants’ broker and that plaintiff was induced to believe, by a telegram sent said broker by defendants just before or at the time of making said contract that defendant would sell the flour mentioned for the price and upon-the terms named therein, and upon the faith of such belief entered into said contract of sale, then the court declares the law to be that said contract is complete in itself and that any usage which may exist in the trade of buying and selling flour, or the place*328 where the same was bought and sold, can not change, contradict or alter said contract.”
The court on plaintiff’s motion gave the following instructions:
“The court sitting as a jury declares the law to be that before defendants can invoke a usage in this case they must show by evidence that the usage proposed to be invoked is one that is certain and uniform; that it is general, by which it is meant that the method of dealing is the universal and notorious method of those engaged in the buying and selling of flour in the city of Monroe, Louisiana; that plaintiff had knowledge of the particular usage, and that it and 'defendants, through their broker, made the contract in question with reference thereto, and intended that it should enter into said contract. If, therefore, the court finds from the evidence that the alleged usage was not certain and uniform, or was not general, or that plaintiff had no knowledge of it, or that plaintiff and defendants, through their broker, did not make such contract with reference to it, or intend that it should enter into said contract, then the court will find that the alleged usage can not be invoked by defendants against plaintiff in this case.”.
“The court sitting as a jury declares the law to be that knowledge of a usage may be either actual or presumptive. That before a party can be charged with presumptive knowledge, it must be shown, by satisfactory evidence, first, that the alleged usage existed; and second, that it was so universal and notorious, by which is meant that it was so generally known and established and so well settled and so uniformly acted upon, as to raise a fair presumption that it was known to both contracting parties, and they contracted with reference to it and in conformity with it.”