Rogers v. Union Iron & Foundry Co., 167 Mo. App. 228

Rogers v. Union Iron & Foundry Co.

167 Mo. App. 228 | Mo. Ct. App. | 1912

CAULFIELD, J.

(after stating the facts).— 1. There is-no merit in defendant’s contention that plaintiffs must fail in their suit because their assignors were “doing business” in contravention to Secs. 30-39 and 3040, R. S. 1909. It may be conceded, without deciding, that such assignors were “doing business” within the meaning of those sections, but in our opinion whatever business was so done constituted interstate commerce and it has been held that said sections are null and void and should be dis-" *245regarded in so far as they apply to and affect foreign corporations engaged in interstate commerce. [International Text Book Co. v. Gillespie, 229 Mo. 397, 129 S. W. 922.] Defendant’s counsel concedes in his brief that there was no evidence that plaintiffs’ assignors were doing other than an interstate business, unless it be in the making of the contracts in suit or the dealings in' respect of the so-called “diverted shipments. ’ ’

As to the contracts he contends that as they are executory and do not expressly require the iron to be brought from another State directly to the purchaser in the State, they must be interpreted to contemplate the sale and delivery in Missouri of iron bought or stored in Missouri. In other words he would have us hold that the contracts contemplate intrastate commerce because not expressly requiring interstate shipments. We do not feel warranted in so interpreting the contracts. In the first place, the iron was to be that which was manufactured by the respective sellers,' for one contract called for iron known as “Sheffield No. 2 Fdy.” and the other for “Napier No. 2 Fdy.” The defendant clearly understood that such designations meant iron of the seller’s own manufacture, for it appears from its president’s testimony that when he had heard that the Sheffield Company was in the hands of a receiver and that they could not furnish iron, he had vehemently asserted to plaintiff’s representative: “I bought Sheffield iron; we don’t want iron from any other locality down there; we want Sheffield iron.” Again, at the last trial, defendant’s attorney objected to the introduction of certain bills of lading showing that the Sheffield Company- had shipped iron to various parties about the time this contract was breached, stating that one of the points in the case is that the Sheffield Company “had no iron of their own,” that there was no showing .that the iron called for in the bill of *246lading was Sheffield iron, and that the witness conld not testify that the iron called for in the hill of lading was “actually made at the Sheffield Company’s furnace.” Neither of the sellers had any plant or furnace in the State of Missouri, so such manufacturing or smeltering must have been intended to be done elsewhere; that is, at their furnaces in Sheffield, Alabama, and Napier, Tennessee, respectively. ■ The contracts show that the iron was to be “shipped,” for they both speak of shipment and freight charges. If there was any doubt as to this, it would be dispelled by the letters of the parties subsequently exchanged and by the provisions of the contracts that delivery was to be “f. o. b. cars St. Louis.” “F. o. b. means, free on board the vessel, cars or other conveyance which is to transport it to the buyer.” [3 Words & Phrases, p. 2636 and cases cited.] St. Louis was the place where the buyer was located, and must have been intended as the destination of the shipment. So we have it that the iron contracted for was to be manufactured by the sellers in other States and shipped by them on cars into Missouri, there to be delivered on board such cars to the buyer. This seems to effectively exclude the idea suggested by defendant’s counsel that the contracts contemplated the delivery of iron “bought in Missouri or stored here.” But if we had any doubt in that respect it would be our duty to resolve it in favor of the plaintiffs, for one of the rules for interpreting contracts is, that, “if the terms admit of two meanings, or two ways of effecting the object, by one of which the thing would be unlawful and by the other lawful, the latter construction must be adopted.” [Bishop on Contracts, Sec. 392.] We are also of the opinion that as the contracts contemplated interstate commerce alone, they were part of interstate commerce so as to be without the lawful scope of the statutory provisions in question.. A statute could not more *247effectually, if not directly, apply to interstate commerce than hy rendering void all contracts for the sale and delivery of the goods to he transported from one State to another. If our statute has that effect, then, under the decision of our Supreme Court, to that extent it is void.

As to the dealings of the plaintiff as agents of the seller in respect of the so-called “diverted shipments,” the evidence discloses that in several instances the Sheffield Company and the Napier Company had shipped cars of iron into St. Louis for delivery to persons or concerns which had previously contracted for such iron, but on arrival in St. Louis, either in the railroad freight yard or at the foundry of the purchaser, it was discovered by the plaintiffs that the purchaser was not “good pay” or rejected the shipment. Then the car or cars were taken by the plaintiff as agents of the seller and delivered to other persons or concerns with whom likewise the seller had made a contract for the sale of iron before such iron had arrived in the State and such delivery was made to such other person or concern under such preexisting contract. Such diverting of shipments from one previously-secured customer to another previously-secured customer was not an intrastate transaction as .distinguished from an interstate transaction. In the first place, such iron had not passed from the control of the importer and still remained in the car transporting it, which may he likened unto the original package, and remained the subject of interstate commerce until delivered to the second customer, [See State v. Emert, 103 Mo. 241, 15 S. W. 81; Leisy v. Hardin, 135 U. S. 100; Miller & Co. v. Goodman, 91 Texas, 41, 40 S. "W. 718.] And in the second place, the second sale had been made at the time when the goods were outside of the State of Missouri for the purpose of introducing them into the latter State and therefore the transaction constituted interstate com*248merce. [State v. Looney, 214 Mo. 216, 97 S. W. 934, 99 S. W. 1165; State v. Emert, supra.] We may also add that, in our opinion, such diverting of shipments caused in the way it was caused cannot possibly he distorted into the doing of business outside of interstate commerce business. Such diverting was necessary to the carrying on of interstate commerce business and cannot be penalised without seriously hampering such interstate commerce business. It, too, . then, must be regarded as without the scope of our constitutional provisions.

II. Both parties agree that the measure of plaintiff’s damages is the difference between the contract price and the market value, but the question of the time when the market value was to be taken is a matter of dispute. The trial judge took it in December, 1907, when the market price was four dollars and seventy-five cents per ton less than the Napier contract price and five dollars per ton less than the Sheffield contract price. Defendant contends that it should have been taken in August, 1907, when the market price was greater than the contract price. Defendant bases this contention upon the alleged fact that it repudiated the contract in August, 1907, and therefore the breach occurred then, but the trial court found that fact against the defendant and its finding is binding on us.

The parties agree that the effect'of the written request to withhold shipments “until further notice” and the reply thereto was to modify the contract so as to make the time and amount of deliveries depend upon the giving of shipping instructions by the defendant, such instructions to be given within a reasonable time. Thq trial court found that, in December, 1907, such reasonable time had expired and that then for the first time the defendant' repudiated the contracts. It may be that such reasonable time expired *249before December, and that the seller might have claimed a breach and had the market value taken as of the time of such expiration, but it does not follow that therefore the market value should have been taken ás of the time of such expiration. While the rule is that the market value is to be taken as of the time of the breach, this is because ordinarily the injured party can thus best be compensated for his pecuniary loss. Upon the breach he can go into the market and resell and thus determine the amount' of his loss. But that rule, like other rules, has its exceptions and is not to be applied when common sense and justice- forbid, as we think they do here. The evidence tends to prove and the trial court found, that the giving of shipping instructions had been postponed from time to time by the plaintiffs at the request of the defendant, until December, when the defendant repudiated thé contracts. Until the repudiation, plaintiffs were induced by the defendant to carry over and postpone the matter of protecting themselves against loss by a resale. When the repudiation occurred, the market had fallen and a resale would leave them a substantial loss. Under these circumstances to take the market value as of a time anterior to the repudiation would be to visit upon the plaintiffs a loss which was caused solely by their forbearance induced by the defendant and would permit the defendant to profit by its own wrong. The law does not require or sanction such an injustice in measuring damages. [Ogle v. Earl Vane, L. R., 3 Q. B. 272 (decided in 1868).] We are of the opinion that the trial court properly took the market value in December, upon the facts as it found them.

III. Defendant contends that respondent cannot recover on the Sheffield contract because the receiver did not adopt or have authority to perform it. We suppose this contention is based on the theory that the party claiming a breach of a contract must not be *250in fault concerning the thing complained of, and if something remained for him to do under the contract, he must show performance or readiness to perform. And we may assume that adoption by the receiver and authority for him to perform were necessary to such readiness on his part. But the only purpose of adoption and procurement of authority to perform is to bind and enable the receiver, as such, to specifically perform, and of course neither is necessary if nothing remains for him to do or tender under the contract in order to hold the defendant liable for a breach. If nothing remains for the receiver to do under the contract his adoption or procurement of authority would be useless. If the other party has breached the contract in such a manner as to render performance or tender by the receiver unnecessary, the latter is without fault and may proceed to recover damages as an accrued claim, just as he could recover upon a note forming part of the assets of the estate. It is also true that the receiver is to have a reasonable time within which to elect to adopt or perform, if performance on his part is necessary, and he cannot be put in fault for not adopting and performing or tendering performance before such reasonable time has expired. Likewise, if before such reasonable time has expired, the other party breaches the contract by repudiating it and thereby relieves the receiver from the duty of performance or tender, the receiver cannot thereafter be put in fault by failing to do the wholly unnecessary things of adopting the contract and procuring authority to perform. In such case the receiver can maintain a suit to recover damages for the breach, because he is without fault in the thing of which he complains and the defendant is in fault. In this case the defendant, before such reasonable time for electing to adopt and perform expired, repudiated the contract and thereby relieved the receiver from the duty of performance or tender, and of course relieved him from *251the necessity of adopting. We rule this point against the defendant.

IY. Defendant further contends that the assignment by the receiver to the plaintiffs is insufficient; that he assigned only his interest in the contract, and not his claim for damages for its breach, which had accrued and vested in him long prior to the assignment. We think the assignment is sufficient, when read in connection with the petition of the receiver for authority to assign the claim and the order of the court authorizing the assignment. But in any event the point is not open to the defendant because.it tried the case on the-theory that the assignment was sufficient. In the statement of facts the parties speak of the assignment as an assignment by the receiver of his “cause of action,” and in no way questioned the sufficiency of the assignment in the trial court.-

V. There is no merit whatever in defendant’s last contention, that an accord and satisfaction of the causes of action was accomplished by .the transmission of the check for $1258.13 by the letter of December 14 and the collection and appropriation of the proceeds of said cheek by the plaintiffs or the receiver. That check represented the exact amount of defendant’s indebtedness on other matters not connected with the matters involved in this suit, and such indebtedness was liquidated, due and undisputed. There must be a consideration to support an accord and satisfaction (Scott v. Parkview R. & I. Co. Mo. -, 145 S. W. 48); and the payment of a debt clearly due does not constitute a sufficient consideration to support any kind of a contract or agreement. [Swaggard v. Hancock, 25 Mo. App. 596.] There was no compromise because there was nothing conceded by the defendant. [Scott v. Parkview R. & I. Co., supra.] Nor do we believe the tender of the $1258.13 due on other mat*252ters was made in a manner or under such, circumstances that any reasonable mind could understand it to apply on the matter here involved. On the contrary the reference is inevitable and conclusive that the defendant intended nothing more than to pay its conceded indebtedness.

The judgment is affirmed.

Reynolds, P. J., and Nortoni, J., concur.