89 Mo. App. 141 | Mo. Ct. App. | 1901
This is an action which was brought before a justice of the peace on a contract to recover damages for a breach thereof. In the circuit court, where the cause went by appeal, a demurrer to the plaintiff’s evidence being 'Sustained, it took a non-suit, and after an unsuccessful motion to set the same aside, prosecuted this appeal.
The plaintiff and defendant are both business corporations, the former a lumber manufacturer at Shreveport, Louisiana and the latter a lumber merchant at Kansas Oity. These two corporations, by certain written correspondence carried on between them, entered into a contract for the sale and delivery of “50,000 ft. 37-32x6-16 clear yellow pine flooring, free of
It seems from the correspondence between these litigants that the plaintiff doubted the solvency of the defendant and was therefore unwilling to ship directly to it the cars of lumber, or to send directly to it the bill of lading, lest it should get possession of the shipment and then not promptly remit" the contract price therefor; while the defendant was unwilling to. pay even eighty per cent on the contract price before it got pos
Nor is it disputed that, before there can be a recovery by the plaintiff for a breach of the contract, it is incumbent upon it to prove performance of all the conditions precedent or acts concurrent. Denny v. Kile, 16 Mo. 450; Turner v. Mellier, 59 Mo. 526; Larimore v. Tyler, 88 Mo. 661; Doyle v. Turpin, 57 Mo. App. 84. As we read the contract disclosed by the correspondence between the parties, the plaintiff bound itself to ship the lumber to defendant and to send to it directly the bill of lading and invoice, and this the undisputed evidence shows it did not do.
The plaintiff had no right under the contract to make the shipment to itself, draw a draft on defendant for eighty per cent of the contract price, with the bill of lading attached, and to require the payment of such draft before delivering the lumber or the bill of lading therefor. The shipment of the lumber to defendant, the sending directly to it the invoice and bill of lading, were requirements of the contract in the nature of conditions precedent, and unless a performance of such acts,
The plaintiff could not substitute a different kind of performance from that required by the contract without defendant’s consent. It could not, without the concurrence of the defendant, make a new contract between them or rescind that previously made. It may have been that from plaintiff’s point of view the substituted performance tendered by it was quite as beneficial to defendant as that required by the contract, yet the defendant was not bound to accept it but still had the right to exact the performance required by the contract.
As to the objection that the contract did not require the bill of lading and invoice to be sent directly to defendant, it is, we think, answered by the letter of defendant to the plaintiff in which the terms and conditions of the payment were fixed. This letter, when read in connection with the other correspondence, satisfies us that it was one of the terms of the contract that the bill of lading was to be sent directly to defendant, and that it would not be required to make payment of the contract-price until after the shipment of the lumber to it and the receipt of the invoice and bill of lading directly from plaintiff. '
It follows that the circuit court did not err in allowing defendant’s demurrer, and accordingly the judgment will be affirmed.