79 Mo. 371 | Mo. | 1883
This was an action for compensation in the form of commissions for services in purchasing, shelling and loading corn on cars for shipment on account of the defendants. It was commenced on the 13th day of June, 1877, in DeKalb circuit court, and taken thence by change of venue to Buchanan county. The action was brought upon a contract in writing, which consisted of a single instrument in the first instance, which was changed and modified by letters in writing which passed between
As the sole issue in the case involves the construction of the contract, I will set it out in full:
“ Know all men by these presents, That the following contract and agreement this day entered into by and between Thomas Stephens and B. E. Stephens, in the county of Eord, and state of Illinois, parties of the first part, and Ed. G. Sheldon & Co., of the towm of Stewartsville; in the county of DeKalb, and State of Missouri, parties of the second part, witnesseth : That the said parties of the first part hereby agree to furnish money to pay for all the corn that said parties of the second part are able to purchase for the parties of the first part, the same to be delivered at the town of Stewartsville, from this elate until the 1st day of June, 1877, or if the parties of the first part wish to extend the time until the 1st day of September, 1877, they may do so at their option. Said corn to be delivered in cribs, subject to the inspection and approval of B. E. Stephens, one of the parties of the first part. When the corn is delivered in said cribs, to be considered the property of said parties of the first part, and entirely at their rislc. Said cribs to be put up in such a manner as to protect the corn, subject to the approval of said B. E. Stephens — to be covered with boards. Said corn to be sound, merchantable corn, subject also to the approval of said parties of the first part, and received by them upon delivery in said cribs. The said parties of the second part agree to purchase all the corn they can for the said parties of the first part as long as the said parties of the first part shall be willing to pay the current price, but wdien they so refuse to do, the said parties of the second part may buy for themselves or other parties, as they may see fit. The said parties of the second part are to be governed by the parties of the first part as to the price they arc to pay for corn at all times. If at any time
Thomas Stephens.
B. E. Stephens.
Ed. ,Gr. Sheldon & Co.
Stewartsville, Missouri, November 27th, 1876.
On which written agreement are the following indorsements, which were also read in evidence:
By mutual agreement, we, the parties above designated, as parties of the first part and parties of the second party, agree that the above mentioned storage shall be reduced to 10,000 bushels.
Thos. Stephens.
B. E. Stephens.
Ed. G-. Sheldon & Co.
"We hereby release the parties of the second part from any further obligation to purchase corn for the parties of the first part on the within contract from this date.
B. E. Stephens & Co.
Stewartsville, Missouri, Eebruary 26th, 1877.
Gibson, Illinois, March 5th, 1877.
Mr. Sheldon & Co.:
Dear Sir: My son is at home and tells me he has released you from buying any more corn, which is all right, but I wanted the time of shelling the corn to be extended say sixty or seventy days longer in case we should wish it, which I think we will want to shell the most of it after June, for the way the market is now we will be bound to lose money if we ship any ways soon. I hope you will not Object to giving us longer time to sell and ship in, for it is no disadvantage to you, for the corn will not shrink any after June. Please answer and tell me what you will do in regard to this matter. .
Yours respectfully,
Thos. Stephens.
Stewartsville, March 7th, 1877.
Mr. Thomas Stephens :
Dear Sir: Yours received. We are willing to do anything that is consistent in regard to extending your time for shelling, for the market at present is flat and we do not wish you to lose any money. We have been working all winter and have received no pay, and don’t feel inclined to put off pay-day, but will make this proposition: We will extend your time to September 1st, 1877, if you will pay us two and three-fourths cents per bushel on the contract and release our storage by June 1st, or pay us for the same. We will then commence shelling for you at any time aftér fifteen days’ notice up to September 1st, when the remaining one cent per bushel will be paid as per contract.
Yours respectfully,
Ed. G. Sheldon & Co.
Gibson, Illinois, March 12th, 1877.
Mr. Ed. G. Sheldon & Co., Stewartsville
Gentlemen: Yours of the 7th inst. received, and speaks like honorable men. You say you are willing to extend the time of shelling the corn we have until the 1st day of September, by us paying two and three-fourths cents per bushel of the commission we are to pay you by June 1st, and release your storage by that time, or pay you for storage after June 1st, which wo are willing to pay you the two and three-fourths cents, and if we need your cribs longer than June 1st, we will pay you for it. Will do anything that is fair and honorable in all our dealings. You have now in your hands the money for the corn you shelled out of the warehouse, which can go toward the two and three-fourths cents per bushel. I do not know the amount of corn you shelled out of the warehouse. I suppose you
Yours respectfully,
Thomas Stephens.
Stewartsville, Missouri, March 19th, 1877.
Thomas Stephens, Esq. :
Dear Sir: Yours of the 12th received, we consider now, as you say, the time extended to September 1st, by your paying us as stated by June 1st. We will have to insist on your emptying our cribs in front of the store, as we need the use of them badly, on or before June 1st. We can’t extend the time on them. In regard to the corn we shelled out of the warehouse, we returned you the same amount in your cribs and in the stable, and at the present time, nor at any previous time, have we had any of your money. Your son Erank will know that this is the case. Would also say that we are about selling our large sheller, as we do not wish to carry it over. It won’t pay us to run two, and the little one is best adapted to our wants; would be glad to see you out soon.
Yours respectfully,
Ed. G-. Sheldon & Co.
Gibson, Illinois, March 26th, 1877.
Mr. Sheldon & Co., Stewartsville, Missouri:
Gents: Yours of the 19th inst. received, in which you
Yours respectfully,
Tiios. Stephens.
After this contract was submitted in evidence, the plaintiffs proved that they had purchased and delivered to defendants under it prior to February 26th, 1877, 40,438 bushels of corn. No evidence being offered by defendants, the court instructed the jury that the plaintiffs were entitled to recover at the rate of two and throe-fourths cents per bushel on the amount so delivered, with interest from the commencement of the suit. The court refused the following instructions asked by defendants :
1. Under the pleadings and evidence in this case the plaintiffs cannot recover.
2. The contract read, in evidence gave the option to defendants to extend the time for the completion thereof in shelling and delivering the corn in question to the 1st day
The jury returned a verdict in favor of plaintiffs and judgment entered on it for the sum of $1,262.31 and costs, from which the defendants appeal.
It thus appears from the instructions asked by defendants that they did not concede any right of action on the contract to plaintiffs before the 1st day of September,1877. Now, according to the language of the letters modifying the original contract, the intention of making two and three-fourths cents per bushel payable on the 1st day of June, 1877, is clearly expressed. That intention is admitted by defendants. But they contend that this modification is void and not binding for want of a consideration. It is argued that the only consideration upon which it rests consists of an extension of the time for shelling the corn to September 1st, 1877, and that under the contract before modification, they possessed that identical right already. It, therefore, becomes necessary for us to examine more closely the provisions of the' original contract, which are claimed to furnish them with the right to so extend the time of shelling the corn on hand prior to March 26th, 1877. I do not perceive how this right of extension can be derived from the provision, which reads as follows: “ That the said parties of the first part hereby agree to furnish money to pay for all the corn that said parties of the second part are able to purchase for the parties of the first part, the same to be delivered at the town of Stewartsvillo, from this date until the 1st day of June, 1877, or if the parties of the first part wish to extend the time until the 1st day of September, 1877, they may do so at their option.” It is true a right of extension is reserved to defendants, but it relates only to the purchase and delivery of corn, and
The judgment is affirmed.