194 Iowa 417 | Iowa | 1922
The plaintiff is a wholesale dealer in flour, and defendant is the proprietor of a restaurant and bakery. On July 28, 1920, at a solicitation of a traveling salesman, defendant executed a written order for the purchase from plaintiff of 100 barrels of flour. This simple and familiar business transaction was evidenced by a writing of such unusual and extraordinary character, so insusceptible of any satisfactory abbreviation, that we here copy it verb atún.
“Exhibit A.
“Dated July 28, 1920.
“New Prague Flouring Mill Co., of New Prague, Minn., hereby agrees to sell to G. A. Spears of Pleasantville, Iowa, who agrees to buy from seller, at said New Prague, at the price, or prices, in the quantity, or quantities stated below, and on the
Number Bbls. Flour Style of package Seller’s Brand Price Flour, per bbl. Feed, per ton
100 98 lbs. White Pearl Flour Coarse Granulation $14.15
“If any specifications are written in space immediately following, they shall apply to each shipment unless request for change reaches seller’s New Prague, Minn., office 5 days before shipment and such change is consented to in writing by seller from its said office.
Old Wheat Flour
“Ship to Pleasantville, Iowa.
“Railroad delivery desired by buyer at destination C. B. & Q.
“To be shipped as follows-: November 1st, 1920, on directions to be furnished you by buyer.
“Terms: Net. Arrival draft with bill of lading attached.
“Braft through Citizens Bank.
“Freight allowed by seller to D. M.
“Par. 1. If buyer indicated a desire to have any ‘shipping date’ extended but fails to specify substitute date, or proposes extension or substitute date which is not satisfactory to seller, seller may, if it desires, extend ‘shipping date’ for such time as it may desire, but not more than 30 days, giving buyer notice by mail or telegram thereof. In event of such extension, or any other extension or postponement of ‘shipping date,’ buyer shall furnish directions for shipment, within such extended period, as in Clause (2) of Par. 4 '(even though not specifically written on face hereof that buyer shall furnish directions), buyer’s failure so to do authorizing seller to exercise, as to shipment extended, any of the four rights set out in said Clause (2). Grant
“Par. 2. On breach of contract by buyer, seller shall recover liquidated damages as follows:
‘ ‘ Clause 1st: As to any of above goods shipped which buyer wrongfully fails or refuses either to accept or pay for, seller may resell same, at public or private sale, without notice, any. time within 90 days from date of such failure or refusal, and recover from buyer thereon difference between purchase price thereof herein contracted and price obtained on resale, if latter be less than former; also all incidental loss and expense, including salesmen’s time and expense, demurrage, storage, cartage, reconsigning, additional freight charges, etc., and any carrying charges unpaid on such goods. Resale anywhere in the usual course of seller’s business, and resale at any terminal market or at or near destination shall be proper and price received conclusive unless, bad faith is clearly proven.
‘ ‘ Clause 2d. As to any of above flour remaining unshipped by reason of buyer’s breach, seller shall recover damages as follows: (a) A sum equal to 4c multiplied by the number of bu. of wheat required to make such unshipped floui', figuring 4% bu. to the bbl. of flour: plus, (b) a sum equal to 2c multiplied by the said number of bu., which sum shall be calculated for each 30 days, or fraction thereof, intervening between date hereof and date of breach: plus, (c) amount of decline, if any, per bu. from date hereof to date of breach, in highest closing price, at Mpls., of Number 1 Northern Spring wheat, multiplied by said number of bu. In case of a rise in such price of such wheat between said dates, instead of a decline, seller shall recover the sums at (a) and (b) above less a sum determined by multiplying amount of such rise, per bu., by said number of bu., such prices on date hereof and date of breach being taken to ascertain amount of decline or rise per bu. Any carrying charges paid on such flour only shall also be deducted from
“Par. 3. Subject to qualifications herein, as to any goods which seller fails to ship within contract time, buyer is authorized to purchase within 30 days after such failure, in the open market, at manufacturer’s prices, in quantity equal to that which seller so fails to ship, goods of the same quality as herein contracted for and recover from seller, excess of price so paid, if any, over purchase price herein, which shall be his sole remedy.
“ [Signed] New Prague Flouring Mill Company, Seller,
“By [Signed] Lenz & Crawford, Salesman.
“[Signed] C. A. Spears, Buyer.
“ [On back of contract.] Par. 4. Clause (1). Unless specif-
ically written on face hereof that buyer shall furnish shipping-directions, seller shall ship the within goods, as may be directed in writing on face hereof, but, if no shipping directions are written on face hereof or if directions so written are indefinite or incomplete, seller shall either request buyer to supply or com- ' píete directions or shall make shipment without so doing, in which latter event seller shall use its best judgment as to buyer’s desires, observing any time limit for shipment written on face hereof. If seller requests buyer to supply lacking, or to complete indefinite or incomplete directions and buyer fails to do so within such time as seller, in its said request therefor, may limit, seller shall make shipment as last above provided at any time that it may elect, not later than 30 days after expiration of time so limited in said request.
“Clause (2). But if specifically written on face hereof that buyer shall furnish shipping directions, buyer shall be
“Par. 5. If shipment is made in other than within specified
“Par. 6. If buyer, while any of within goods remain un-shipped, either (a) clearly informs seller that he.will not perform contract, or, (b) directs seller to cancel contract, or, (c) requests seller to cancel contract, or (d) admits or asserts his inability to perform contract, or (e) wrongfully fails or refuses to pay any carrying charges due or pay for goods shipped, seller may, as to goods shipped which buyer wrongfully fails or refuses to pay for' or accept, if any, recover damages as in Clause 1st or Par. 2, and, as to such of within goods as remain unshipped, if any, seller may, without prior notice, either: Clause (1) treat entire contract as if immediately rescinded; or, Clause (2) terminate entire contract and recover. damages calculated as in Clause 2d of Par. 2, date of such termination being construed date of breach, damages to be calculated in such instance, on any and all of within goods remaining unshipped and not merely such as remain unshipped by reason of buyer’s failure or refusal to furnish shipping directions therefor, and, in event of such termination, carrying charges be deducted shall be all carrying charges paid, if any, on any and all flour un-shipped; or Clause (3) entirely disregard such conduct of buyer. After conduct described at (a) or (b) of this par. seller shall not elect more than once under Sub. (b) of Clause (2) in Par. 4, if said conduct is communicated by writing signed by buyer, unless buyer makes withdrawal of such conduct. If seller elects under either Clauses (1) or (2) or this par., it shall, on so electing, mail buyer notice of such election, and, failing so to do, shall be deemed to have elected under Clause (3) of this par. Seller may elect under either Clause (1) or (2) of this par., any time within 20 days after becoming aware of grounds for election. In event of conduct of buyer as in either (a) or (b) of this par. communicated by writing signed by buyer and in event seller elects thereafter under Sub. (b) of Clause (2)
“7. Only authority of seller’s salesman is to sign this contract for, and transmit same to, seller. Thereafter all matters must be taken up, in writing, through seller’s said office. This contract shall not bind seller until it has mailed, or placed in course of transmission by telegram to buyer, at within or known address, its acceptance or confirmation hereof from either its said office, or its branch office at Pittsburgh, Penna., or Des Moines, la. Such confirmation or acceptance shall 'always be timely if so made not later than 20 days from date hereof and shall make contract mutually binding unless offer (which this contract' before its acceptance by seller, constitutes) is revoked by buyer before such acceptance. Eevocation of offer to be effectual must be in* writing subscribed by buyer and received by seller at its said New Prague office before seller’s acceptance, as aforesaid. Time shall be of the essence of this contract which contains the whole agreement. This is a contract to sell, by description, goods to be manufactured, unless specifically written on face hereof that sale is by sample. Buyer shall not claim any extension, modification, rescission or annulment of this contract, or any part thereof, or release from any of its provisions by mutual agreement, unless such agreement is in writing, subscribed by seller. Seller shall not waive any provision herein unless waiver is expressly agreed to in writing by it through its said New Prague office. There are no representations, guaranties or warranties except such as may be written on face hereof,
“ ‘Contract’ means this identical instrument, date of which shall be date of contract. ‘Herein’ means in this contract. ‘Hereof’ means of this contract. ‘Shipping date’ shall mean date, or last day or period, or of time, written on, face hereof, on, or before which, or within which shipment is to be made, either on directions to be furnished by buyer or without awaiting such directions, as the case may be; or substitute date, or period, if any, or last day of last extended period, if any, of
On August 2, 1920, plaintiff sent to defendant its confirmation of the contract in words as follows:
“Exhibit B.
“Confirmation of Contract.
“New Prague Flouring Mill Co.
“New Prague, Minn., Aug. 2, 1920.
“Mr. G-. A. Spears,
“Pleasantville, la.
“Dear Sir:
“We are pleased to hereby acknowledge, accept and confirm your contract dated July 28, 1920, solicited by our Messrs. Lenz & Crawford for the purchase by you from us, at New Prague, Minnesota, at the price, or prices, in the quantity, or quantities stated below, and on the terms and conditions and subject to the agreements appearing below and on the back hereof, the following described goods:
Number Bbls. Flour Style of package-Seller’s Brand Price Flour, per bbl. Feed, per ton
100 98 lbs. White Pearl Flour Coarse granulation $14.15
“If any specifications are written in space immediately following, they shall apply to each shipment unless request for
$
“Ship to Pleasantville, la.
“Railroad delivery desired by buyer at destination C. B. & Q.
“To be shipped as follows: November 1st, 1920, on directions to be furnished by buyer.
‘ ‘ Terms: Net. Arrival draft with bill of lading attached.
“Draft through Citizens Bank.
“Freight allowed by seller to Des Moines, la. Ter. 45-C.
“Said contract, hereby confirmed and accepted, is subscribed by you and, at the-time you subscribed it, we believe our salesman left with you a duplicate thereof for your reference. In addition to what is above indicated, said contract contains the terms, conditions, provisions and agreements printed on the back hereof, said terms, conditions, provisions and agreements, printed on the back hereof, being quoted and copied from your said contract, all of which is hereby confirmed. The mailing by us of this confirmation and acceptance makes your said contract, with all of its terms, conditions, provisions and agreements, binding and effective as of its date. The intention is to hereby unqualifiedly accept your said contract, or offer, exactly as it is written and was made, any error, omission or addition herein, if any, in copying or quoting its terms, conditions, provisions and agreements, or any thereof, or any part of any thereof, or otherwise, notwithstanding. Anything herein at variance with the contents of said contract, or offer, shall not have any effect, but the contract, or offer, itself shall be evidence of its contents and of what is hereby accepted, this being an absolute and unqualified acceptance of said contract, or offer, in compliance with Paragraph seven thereof.
“ [Signed] New Prague Flouring Mill Co.
“By G. A. Brady.”
‘ ‘ If you have none of the old wheat flour, the jig is up, and I will look elsewhere. ’ ’
Since that time, defendant has refused to be bound by the contract, and denies liability for damages. To his complaint as to the kind and quality of the flour, plaintiff wrote defendant, saying that it had “checked up the matter,” and was unable to find that anything but old wheat flour was shipped, but adding, ‘ ‘ Of course it may be possible that our warehouse sent you the wrong flour through error although they advise that the flour set aside for you was sent,” and expressing a willingness to ‘ ‘ replace it if it is not giving entire satisfaction. ’ ’ Nothing further being done, plaintiff again wrote defendant, December 6, 1920, asking him to designate the date or dates on which he wished the remainder of the order shipped; and to this defendant responded, again complaining of the alleged failure of plain
The defendant, answering the claim thus made, admits that he gave the plaintiff’s agent an order for 100 barrels of old wheat flour, and alleges that said agent represented to him that the flour would be old wheat flour, and that, if defendant should not be satisfied with its quality, he might at any time cancel the order for any part of the flour not already shipped to him,'and refuse to receive the undelivered remainder; and that, in reliance upon such representation and promise, said order was executed. He further alleges that no agreement was ever made between him and plaintiff as to the measure of damages to apply in the event of his refusal to receive the flour; that the printed part of said order was in no manner mentioned or discussed between himself and plaintiff or the salesman, nor was it read to him or by him; and that said provisions constituted no part of the contract or agreement actually made. He further denies the alleged agreement giving the plaintiff the right to extend the time for delivery of the flour indefinitely and repeatedly for 30-day periods without his consent, and alleges that the same is without mutuality, against public policy, and void. The defendant also pleads a counterclaim for damages on account of the inferior quality of the flour in the second shipment of ten barrels received by him.
The answer was not attacked by motion or demurrer, but plaintiff joined issue thereon by reply in denial.
Aside- from the matters already stated, concerning which there is little or no conflict, the plaintiff’s testimony was confined to an offer in evidence of copies of the Minneapolis Daily Market Eecord, quoting the price of No. 1 spring wheat on July
“I did not read the contract to him. He did not read it in my' presence. When it was signed, he took the duplicate. I took the contract. That was all that was done. ’ ’
At the close of the testimony, plaintiff moved for a directed verdict in its favor for the amount of its claim. Defendant also presented a similar motion in his own behalf. The plaintiff’s motion was denied, and the defendant’s sustained. Verdict for defendant was returned accordingly, and judgment rendered thereon against plaintiff for costs.
I. In logical- order, perhaps, we should first consider whether, assuming the contract to be a valid one, the evidence shows an actionable breach thereof by the defendant. That defendant did enter into an agreement to purchase from plaintiff 100 barrels of old wheat flour at a stated price, the same to be “shipped by the plaintiff November 1, 1920, on directions
‘ ‘ If specifically written on face hereof that buyer shall furnish shipping directions, buyer shall be obliged to notify seller of date or dates for shipment which shall not be later than ‘shipping date,-’ * * * and his failure to do so shall give seller right as to any of the within goods remaining unshipped by reason thereof to either (a) treat the contract as if rescinded; or (b) extend ‘shipping date’ 30 days, and thereafter (as long as buyer’s said failure or refusal continues) continue the life hereof by as many such successive extensions as seller may desire; or’ (e) ship such goods within 30 days after ‘shipping date,’ * * * or (d) terminate contract (as to such unshipped goods only) * * * and recover * * * damages. ’ ’
It is there still further provided that, in case of the buyer’s default, and in case the seller does not give notice of his purpose
“Plaintiff certainly was justified in assuming, until November 2d, that defendant would order the flour as he desired it shipped, and on that day defendant; in a letter to plaintiff, declared, in so far as the contract was concerned, that the ‘jig is up,’ or in other words, the contract was off, thus abrogating the contract and bringing this case within the rule of the Sheffield-King and other similar cases, It certainly cannot be said that, after the letter of November 2d, the plaintiff was required to ship more flour without shipping directions, and none were thereafter given. In fact, the record shows that, from that time, if not before, defendant had no intention of going .on with his contract. ’ ’
This statement by counsel is a frank recognition of the fact that defendant’s final refusal to perform occurred not later than November 2d, and that, because thereof, plaintiff was no longer under duty or obligation to make any further delivery or tender. Such being the case, the law fixes the time of the breach as being the date at which plaintiff’s right of action for damages accrued, and the burden is on the plaintiff to prove its damages as of that date, whether they are to be computed and assessed according to the general rule of law or according to the alleged stipulation in the contract. The stipulation, if it be valid, does not specify or fix a specific sum or amount of recoverable damages, but simply provides the rule by which such amount is to be computed. No evidence was offered as to the value of the flour or of the equivalent amount of wheat on November 1st or November 2d, or of any decline in the market price which had then taken place; but the showing sought to be. made was limited entirely to January 31, 1921, — three months after the time when, according to the undisputed showing and plaintiff’s admission in argument, the contract had been “abrogated” or repudiated by defendant, and plaintiff had thereby been relieved from any further obligation to deliver the flour.
“A breach which goes to the entire performance may relieve the party in default from further liability under the contract, except to pay damages occasioned by such breach. * * * The adversary party cannot ignore the breach, perform the covenants * # * on his part to be performed, and recover the entire contract price, as if no breach had occurred.”
In the case of Chapman v. Ingram, 30 Wis. 290, 295, the plaintiff sued for damages by reason of the defendant’s refusal to receive and pay for lumber to be delivered during a certain season; and of the rule for measurement of damages and of the time when they accrued, the court says that, where the vendor “is ready and willing to perform, and offers to do so, but the vendee refuses, .even though the title is not vested in the vendee, the vendor still has his action on the contract for damages. But the rule of damages in such case would be the actual injury sustained, which is ordinarily the difference between the value of the property at the time of the_ refusal, and the price agreed on.” In Badger St. Lbr. Co. v. Jones Lbr. Co., 140 Wis. 73 (121 N. W. 933), the same court repeats the rule that, where a party to a contract for the sale and delivery of property renounces it and refuses to perform, “the right of the parties must be determined as of that date.” Indeed,'we think no court has ever held otherwise.
We think there is no merit in the further claim of the appellant that the peculiar provisions of the contract in the form in which it is pleaded and put in evidence permit it to -recover damages as of January 31, 1921, long after the time when, even jon its own theory of the facts, the defendant had definitely refused to perform. The right of the defendant to refuse performance (subject to his liability to 'damages) goes to the entire contract; and plaintiff may not, by subsequent tenders or offers or demands, preserve the life and efficacy of such contract for the purpose of enhancing its recovery by adding thereto other
II. There is another feature of the record not argued by counsel, but proper to be considered in support of the ruling complained of. As we have noted in our preliminary statement, the answer filed by the defendant was not challenged by motion or demurrer, and issue was joined by reply upon the matters pleaded by . way of defense and avoidance. According to
III. In view of our conclusion that the judgment appealed from may be affirmed upon grounds already discussed, we do not attempt to decide the question raised by counsel, whether the order in suit discloses upon its face a legally enforcible contract. It is enough at this time to say that, if it be a contract,
The record discloses no prejudicial error of which plaintiff may properly complain, and the judgment of the trial court is— Affirmed.