Taussig v. Southern Mill & Land Co., 124 Mo. App. 209

Taussig v. Southern Mill & Land Co.

124 Mo. App. 209 | Mo. Ct. App. | 1907

BLAND, P. J.,

(after stating the facts). — 1. The circuit court construed the clause of the contract, “Terms: sixty days or two per cent discount for cash after deducting freight, if remitted within ten days from the date of the invoice,” to mean that plaintiff was entitled to two per cent discount, if he made remittances within ten days from the date a car of lumber arrived in St. Louis; in other words, that the invoice date mentioned in this clause of the contract, meant that the invoice should be dated on the day the shipment was delivered at St. Louis, and not on the day the lumber Avas loaded on the car at defendant’s mills at Conran, Missouri, and receipted for by the carrier. The contention of defendant is that the place of delivery of the lumber, was aboard cars at its mills. This would be so if thi plaintiff had selected the carrier to haul the lumber [Gill & Fisher v. Commission Co., 84 Mo. App. 1. c. 460 Werner Sawmill Co. v. Ferree, 201 Pa. St. 405.] But where the seller himself undertakes to make delivery at a distant place and selects his own carrier, the carrier is not the buyer’s agent but the agent of the seller, and delivery of the goods to the carrier is not delivery to the buyer. [Benjamin on Sales, sec. 1040; Braddock Glass Co. v. Irwin & Co., 153 Pa. St. 440; Atchison v. Railroad, *21780 Mo. 213; Hance v. Railroad, 62 Mo. App. 60; Bergner v. Railroad, 13 Mo. App. 499.] The stipulation in the contract, that plaintiff should pay the freight and deduct it from the price of the lumber, was for the accommodation of the defendant and did not in the least alter the relation of the carrier to it, therefore, the plaintiff, under the terms of the contract, did not become liable for a shipment of lumber until delivery or tender of delivery at St. Louis; and a fair and just interpretation of the contract gave him sixty days thereafter to make payment, and the two per cent discount, if he made payment within ten days from the date of delivery. Otherwise, if the car of lumber, from any cause, should not be delivered within sixty days from the date it was loaded at defendant’s mill, the price of that carload would become due before the lumber was delivered, or if a car should be delayed over ten days from the date of shipment (as was the case with car No. 523) plaintiff would be deprived of his right to the two per cent discount should he remit payment within ten days from the date of its arrival. Such results could not have been in the minds of either of the parties to the contract when it was entered into. We think the learned circuit judge correctly ruled that the date when payment should become due, under the contract, was sixty days from the date of the arrival of a shipment at St. Louis, and that plaintiff was entitled to the two per cent discount if he made remittance within ten days after the date of arrival. Now, in respect to car No. 523, the invoice shows it was loaded on April twenty-seventh. The evidence shows that it did not arrive in St. Louis until May twenty-fifth, and that plaintiff’s check to pay for the car was dated June fifth and mailed on that or the next day. The remittance, therefore, was not made within ten days from the date of the arrival of the lumber in St. Louis, or from the date of the invoice, according to the day the trial court found it should have been dated; *218yet, the plaintiff deducted the two per cent discount from the selling price of the lumber and, on demand of the defendant, refused to pay what he had thus wrongfully withheld. This was a breach of the contract. But was it such a breach as authorized the defendant to cancel the contract? If so, then the plaintiff cannot recover unless the defendant waived the breach by its subsequent conduct. It is well-settled law that if the purchaser fails to pay for property delivered as required by the contract, the seller may abandon the contract and recover the property (Evans v. Railroad, 26 Ill. 189) or, if the property is to be delivered in installments and paid for as delivered, and the purchaser fails to make payments as the contract provides, the seller may cancel the contract, refuse to make future deliveries and recover for the property actually delivered. [Bradley v. King, 44 Ill. 339; Purcell Co. v. Sage, 200 Ill. 342; Eastern Forge Co. v. Corbin, 182 Mass. 590; National Machine, etc., Co. v. Standard, etc., Co., 181 Mass. 275.] But in all these cases the purchaser did not refuse to pay a part of the purchase price, or a part of the installments due under the terms of the contract, but the whole of it. Plaintiff did not refuse to pay for the carload of lumber delivered May twenty-fifth. He only claimed the right to deduct two per cent from the purchase price as discount. He was not entitled to this discount. But the amount was so small, and the breach of the contract so insigUificant, and defendant could so easily have been compensated in damages for the breach, that we do not think the deduction of the two per cent discount from the price of the carload of lumber was such a refusal of the plaintiff to perform the contract as 'would authorize the defendant to cancel it. [7 Am. & Eng. Ency. of Law, p. 150.]

•2. The defendant offered to prove that all the gum lumber shipped to the St. Louis market came from the southeastern portion of the State, and to show that in *219the months of June, July and August, 1903, gum lumber of the kind and quality defendant contracted to sell plaintiff, could have been bought in southeast Missouri and hauled by railroad to St. Louis, at a cost per thousand feet less than the price plaintiff contracted to pay defendant. The court, on the objection of the plaintiff, excluded this evidence. Plaintiff was a dealer in lumber, and the lumber he contracted to take from defendant was for the purpose of selling on the market of St. Louis, or to fill contracts plaintiff had with other parties, and defendant contends that as the lumber was merchandise, it was incumbent on plaintiff to provide himself as cheaply as he could, conveniently, with the lumber defendant refused to deliver under the contract, from the most accessible sources and thus lighten the loss or prevent it altogether, and that his right of recovery is not the difference, if any, between the market value of the lumber at St. Louis and the contract price, but the difference between the contract price and the price at which plaintiff could have supplied himself with the same merchandise, by reasonable effort. The circuit court ruled that the measure of plaintiff’s damage was the difference between the contract price and the market value of the same kind and quality of lumber during the months in which it should have been delivered, to-wit, June, July and August.

Defendant repudiated the contract on June 17, 1903. Plaintiff commenced his action on the thirtieth day of the same month. He thereby elected to put an end to the contract and to treat its repudiation by defendant as wrongful. The law with reference to a contract to be performed at a future time, where the party bound to performance announces prior to the time, his intention not to perform It, is stated as follows by Lord Cockburn, Chief Justice, in Frost v. Knight, L. R. 7 Ex., at pages 112-113. “The promisee, if he pleases, may treat the notice of intention as inoperative, and *220await the time when the contract is to be executed, and then hold the other party responsible for all the consequences of non-performance; but in that case he keeps the contract alive for the benefit of the other party as well as his own; he remains subject to all his own obligations and liabilities under it, and enables the other party not only to complete the contract, if so advised, notwithstanding his previous repudiation of it, but also to take advantage of any supervening circumstance which would justify him in declining to complete it.

“On the other hand, the promisee may, if he thinks proper, treat the repudiation of the other party as a wrongful putting an end to the contract, and may at once bring his action as on a breach of it; and in such action he will be entitled to such damages as would have arisen from the non-performance of the contract at the appointed time, subject, however, to abatement in respect of any cicumstances which may have afforded him the means of mitigating his loss.”

By acting on the notice of repudiation, it was the duty of plaintiff, if he had the means, to avert or lessen the damages which would otherwise flow from the nonperformance of the contract (Oreve Coeur Lake Ice Co. v. Tamm, 90 Mo. App. 1. c. 197, and cases cited) and we think the evidence offered by defendant for the purpose of averting or lessening the damages should have been admitted.

3. Plaintiff’s evidence to the effect that defendant, through Pierce, its president, agreed on June 5, 1903, to thereafter make Aveekly deliveries of the lumber, tended to prove a modification of the written contract, in respect to the time oí delivery of the lumber. It is competent for parties to a Avritten contract to verbally modify it, but it is not competent to prove such modification without pleading it. [Lanitz v. King, 93 Mo. 513, 6 S. W. 263; Halpin Mfg. Co. v. School District, 54 Mo. App. 371; Wilson & Son v. Russler & Gnagi, 91 Mo. App. *2211. c. 280.] And the learned trial judge, in estimating the damages, based his estimate on the modification of the contract, as testified to by plaintiff, and thereby permitted a recovery on a cause of action not stated in the petition.

4. It is contended by plaintiff that defendant, by accepting plaintiff’s check for $242.74 in payment for the carload of lumber shipped April twenty-seventh, waived the discount of two per cent on the purchase price of said lumber. The evidence does not tend to show a waiver. Defendant’s letter of June 17, 1903, shows plainly it elected to pocket the loss of the $4.96 and at the same time repudiate the contract.

For the errors herein noted, the judgment "is reversed and the cause remanded.

All concur.