129 Mo. App. 325 | Mo. Ct. App. | 1908
On May 29, 1905, plaintiff, an incorporated company, entered into a contract with the defendants a partnership composed of thirty or forty members, for the purchase of fifteen hundred cases of tomatoes. The contract was in writing and reads as follows :
*327 “Seymour, Mo., May 29, 1905.
“Sold Ryley-Wilson Grocer Company, Kansas City, Mo., for tile account of Seymour Canning Co., Seymour, Mo., 1500 cases Standard 3-lb. tomatoes, 1905 pack, 70 cents per doz. f. o. b. tbe factory. 12-1.2 ct. to Kansas City, Mo., or at 10 cts. to Pittsburg, Kas.
“Terms cash, less 1-1.2 per cent in ten days.
“75 per cent delivery guaranteed. 6 months guarantee against swells from date of invoice.
“Shipment when packed.
“Seller shall not be held liable for fulfillment of this contract in the event of total failure or destruction of crop, or destruction of cannery by the elements.
“Seymour Canning Company, Seller,
“Accepted A. H. Davis.
“Ryley-Wiusoin Grocer Co., Buyer,
“Accepted H. I. Wilson.”
On June 17, 1905, the parties entered into two other contracts in writing, by the first of which plaintiff purchased and defendant sold one thousand cases of tomatoes, and by the other contract plaintiff purchased and defendants sold five hundred cases of tomatoes. The two contracts of June 17th are similar to the one of May 29th, save the exception to the liability of the defendants for non-performance contained in the last two contracts, which reads as follows:
“Seller not liable for delivery of goods in case of destruction of cannery, and not liable for delivery of more than 75 per cent of this order in case of inability to fill order in full, owing to partial or complete destruction of crops by hail, drought or any unavoidable accident or casualty.”
This action was instituted in three counts for damages for the non-performance by defendants of the three agreements. In the first count plaintiff demands damages in the sum of $1,275, in the second of $850, and in the third of $125. It will be observed that three
“Seymour, Mo., Sept. 15, 1905.
“Meinrath Brokerage Co., Kansas City, Mo.
“Gentlemen: We beg to say in relation to your
letter of the 14th inst. that our tomato crop was a complete failure; our factory packed less than two cars of tomatoes. You can say to your customers that they may expect nothing from the Seymour Canning Company as the tomatoes did not grow this year.
“Very respectfully,
“Seymour Canning Co.”
Several letters from the plaintiff were introduced, which show plaintiff stood on the letter of the contracts, and insisted on delivery under each contract to the amount of seventy-five per cent of the cases agreed to be furnished. No tomatoes were delivered. It was proved that, as alleged in the answer, the tomato crop in the vicinity of Seymour, in Webster county, AAdiere the cannery of defendants is, was a failure during the
Regarding the liability of the defendants on the first count, that is, on the contract of May 29th, the jury were instructed to return a verdict for plaintiff unless they believed from the evidence there was a total failure or destruction of the tomato crop, and that by a total failure of the crop as used in the contract described in the first count of the petition, was meant either that no tomatoes at all Avere produced in the territory from which the defendants expected to secure their supply of tomatoes (italics ours) or that if any were produced the amount was so small as only to amount to a trifle, and be of no consequence as compared with what would ordinarily be produced in such territory. The burden of proving a total failure of the crop by a preponderance of the evidence was imposed on defendants. Plaintiff’s counsel requested the court to instruct that in determining whether or not there was a total failure, of the crop, the jury should “take into consideration the number of tomatoes packed by defendants and the number of cases contracted by them to plaintiff,” and if the jury believed there was packed by defendants a substantial amount of tomatoes, with reference to the amount called for in said contract, it should find there was not a total failure of the crop within the meaning of said contract, and the verdict should be for the plaintiff on the first count. Said
The instruction given for defendants errs in confining the meaning of the expression “total failure or destruction of crop” as used in the contract of May 29th, to the crop in the vicinity of the cannery from which defendants expected to secure their supply of tomatoes. This limitation took no account of what plaintiff understood the expression to mean. Where a party by his own contract puts an obligation on himself without qualification or exception, he is held liable for non-performance, though performance becomes impossible. [Whittemore v. Sills, 76 Mo. App. 248.] These parties introduced an exception in case of a failure of the tomato crop over a territory left undefined. For this exception to come into play and excuse defendants from delivering the tomatoes as agreed, it was essential for the crop to fail over the territory intended by both parties; not merely the territory from which defendants expected to get their supply. This is no more than saying the contract means what both parties intended it to mean, taking into view the entire situation and all facts existing when it was made — what it should in fairness and reason have been intended to mean. The defendants entered into contracts with some seventy-five growers to raise tomatoes for their cannery, and probably expected to get their supply from the territory planted by these growers; say two hundred and fifty acres. But it by no means follows plaintiff understood defendants were not bound to furnish the tomatoes if the crops planted by those growers failed. The obliga
“In other words, if the contract which the parties have made is incurably uncertain, the law will not or rather cannot enforce it; and will not, on the pretence of enforcing it, set up a different but valid one in its stead. It will only declare such a supposed contract*333 no contract at all; and will leave the parties to the mutual rights and obligations which may then- exist between them. But, on the other hand, the law will not pronounce a contract incurably uncertain, and therefore null, until it has cast upon it all the light to be gathered, either from a collation of all the words used, or from all contemporaneous facts which extrinsic testimony establishes. If these make the intention and meaning of the parties certain, it may still be an intention which the words cannot be made to express by any fair rendering. In this case also the contract is null, for it is the words and not the intention without the words that must prevail. But if, when the intention is thus ascertained, it is found that the words will fairly bear a construction which makes them express this intention, then the words will be so construed, and the contract, in this sense or with this interpretation, will be enforced, as the contract which the parties have made.
“The distinction and the rules of Lord Bacon are therefore less regarded of late, than they were formerly. They are intended to enable the court to distinguish between cases of curable and those of incurable uncertainty; to carry the aid of evidence as far as it can go without making for the parties what they did not make for themselves, and to stop there.” [2 Parsons (9 Ed.), *561.]
As very instructive in this connection, wé quote from the opinion by the Master of the Rolls in Colpoys v. Colpoys, Jacobs, 451, 463:
“In the case of a patent ambiguity, that is one appearing on the face of the instrument, as a general rule a reference to matter dehors the instrument is forbidden. It must, if possible, be removed by construction, and not by averment. But in many cases this is impracticable; where the terms used are wholly indefinite and equivocal, and carry on the face of them no certain or explicit meaning, and the instrument furnishes no ma*334 terials by winch the ambiguity thus arising can be removed; if in such cases the court were to reject the only mode by which the meaning could be ascertained, viz. the resort to extrinsic circumstances, the instrument must become inoperative and void. As a minor evil, therefore, common sense, and the law of England (which are seldom at variance) warrant the 'departure from the general rule, and call in the light of extrinsic evidence. The boohs are full .of instances sanctioned by the highest authorities both in law and equity. When the person or the thing is designated, on the face of the instrument, by terms imperfect and equivocal, admitting either of no meaning at all by themselves, or of a variety of different meanings, referring tacitly or expressly for the ascertainment and completion of the meaning to extrinsic circumstances, it has never been considered an objection to the reception of the evidence of those circumstances', that the ambiguity was patent, manifested on the face of the instrument. When a legacy is given to a man by his surname, and the Christian name is not mentioned; is not that a patent ambiguity? Yet, it is decided, that evidence is admissible, (a) So where there is a gift of the testator’s stock, that is ambiguous, it has different meanings when used by a farmer and a merchant. So with a bequest of jewels: if by a nobleman, it would pass all; but if by a jeweler, it would not pass those that he had in his shop. Thus the same expression may vary in meaning according to the circumstances of the testator.”
Having concluded the exception is to be enforced, the next inquiry is as to its meaning- — what did the parties intend? It is contended for plaintiff the crop failure must have been general, or, at any rate, so exténsive that defendants could have bought no tomato.es in the markets of the country to pack and deliver in execution of their contracts. This contention appears to us to be extravagant; for it is highly improbable the
It strikes us the extent of the failure, territorially speaking, which would constitute a total failure in the sense of the contract and the intention of the parties, is left so uncertain that probably it must be determined by a jury from all the circumstances throAving light on the question which may be put in evidence. Though the interpretation of written instruments is, in most instances, for the co art, this is not universally true. If what the parties to an agreement meant, depends on extraneous facts which are in dispute, or which would support different inferences, the question of intention may be referred to the triers of the fact. Some facts
The judgment is reversed and the cause remanded.