249 Mo. 600 | Mo. | 1913
In the spring of 1906 the manager of plaintiff company conceived the idea of attempting to build up a certified milk business, plaintiff not then receiving any milk of that character though marketing large quantities of uncertified milk, eream, etc. To accomplish this purpose plaintiff took up the matter with defendant and these negotiations resulted in the execution, in March, 1906, of the contract for the alleged breach of which this action was brought. The essential parts of the contract are:
“Party of the first part (Prindle) agrees to supply party of second part (Keyes Farm & Dairy Company) with milk and cream from his dairy herd in Glreen county, Illinois, according to rules, regulations and requirements of the St. Louis Pure Milk Commission, as specified in printed circular of information concerning the requirements of the St. Louis Pure Milk Commission for certified milk — a printed copy of which*602 is hereto attached and made a part of this agreement. And party of second part agrees, for and in consideration of the snm of $1 to party of first part in hand paid, the receipt of which is hereby acknowledged, to purchase from party of the first part his entire product of pure milk and cream, or either, for the term of five years from date hereof, delivered daily in sweet and merchantable condition, at prices and terms hereinafter mentioned, delivered f. o. b., Union Station, St. Louis, Missouri.
“For certified milk in cans furnished either by party of second part or at his request, through St, Louis Pure Milk Commission, 16 cents gallon. For skim milk in cans furnished to party of first part, 7 cents gallon. For cream in such denominations of butter-fat percentage as may from time to time be ordered, 3 cents per point, according to Babcock test, at 3 cents per p(o)int.
“For certified milk in bottles furnished by party of second part, f. o. b., Union Station, St. Louis, Mo., packed in boxes furnished by party of first part, said milk to be bottled, labeled and shipped in boxes with cracked ice surrounding the bottles, 9 cents per quart, f. o. b., Union Station, St. Louis, Missouri, conditioned, however, that if party of second part secures contract to furnish the St. Louis Pure Milk Commission, St. Louis, Missouri, with its requirements for milk, skim milk, and cream, that party of second part shall and will pay unto the party of the first part, in regular monthly settlement, one-half of net profits derived from sales to the St. Louis Pure Milk Commission for season of 1906, or any renewal or extension of such contract with said Commission during the term of this contract; and conditioned, further, that party of sec-: ond part does hereby agree to take not less than one case of bottled certified milk daily, first shipment to commence not later than April 10,1906, and to increase orders for such milk as fast as demands and require*603 ments of customers of party of second part necessitate, and in consideration of the extra expense entailed by party of the first part in remodeling bis barn and premises to conform to requirements of St. Louis Pure Milk Commission, party of the second part does hereby obligate itself not to produce from its own farm, or purchase from others, any certified milk in bottles until the entire supply of party of the first part shall first have been exhausted by sales to party of second part, and party of second part further hereby obligates itself to take any excess of milk and cream, skim milk, or either, as may be ordered, during the term of this contract, which is not required by party of second part, in bottles or in cans, by sale to St. Louis Puré Milk Commission, produced by party of first part, delivered in cans of party of first part, in good condition, f. o. b., Union Station, St. Louis, Missouri, at the following prices: For cream, 3 cents per point; for whole milk, not less than 3 80/100 butter-fat, 16 cents per gallon; for skim milk, 6 cents per gallon. Party of the second part is to pay for any advertising in- connection with the sale of certified milk, and no portion of such cost for advertising shall be charged against party of first part in settlement for the monthly profits from sale to St. Louis Pure Milk Commission, in event contract is awarded to party of second part to furnish said Commission with its requirements for milk, skim milk, or cream for season of 1906, or any other period covered by the terms of this agreement.”
July 23,1906, defendant’s dairy was inspected and approved by representatives of the Commission and defendant authorized to use the Commission’s trademark and market his product, as certified milk, through plaintiff, as his St. Louis agent. In his contract with the Commission defendant bound himself to observe the Commission’s regulations and plaintiff contemporaneously executed a bond to secure its own observance, as defendant’s agent, of all regulations of the
During the period from the execution of the contract between plaintiff and defendant until the inspection and approval of defendant’s dairy and the execution, July 23, 1907, of the contract between plaintiff and the Commission, defendant could not produce certified milk, but no complaint is made or damages claimed for that reason, the contract between plaintiff and defendant admittedly having been entered into in anticipation of defendant’s thereafter bringing his dairy up to the Commission’s standard and in expectation of some delay in doing so. The real foundation of plaintiff’s action is its claim that the contract en
By agreeing to supply plaintiff with milk and cream ‘ ‘ according to the rules, regulations and requirements of the St. Louis Pure Milk Commission,” as by the contract he did agree, defendant simply agreed to supply plaintiff with certified milk, since compliance with the Commission’s rules, regulations and requirements was exactly what was necessary to enable defendant to produce and furnish to plaintiff and plaintiff to sell in St. Louis ‘ ‘ certified milk. ’ ’
It is true prices are fixed by the contract for certified milk in cans but this provision itself discloses that it was inserted in contemplation of the anticipated contract to furnish milk to the Commission and in anticipation of the exception subsequently made in that contract when it was secured. The subsequent provision obligating defendant to take, at designated prices, any excess of milk, cream, etc., produced by defendant and “which is not required by party of second part in bottles or in cans, by sale to St. Louis Pure
The judgment is affirmed.
PER CURIAM. — The foregoing opinion of Blair, C., is adopted as the opinion of the court.