Tufts v. L. C. Sams & Son

47 Mo. App. 487 | Mo. Ct. App. | 1892

Gill, J.

The plaintiff, at the dates hereinafter named, was a manufacturer of a certain soda water apparatus at Boston, Massachusetts. On February 4, 1889, defendants at Clinton, Missouri, addressed an order to plaintiff at Boston for one of said machines, requiring same to be shipped not later than April 1, thereafter. On the next day,. February • 5, however, defendants wrote to plaintiff canceling the previous order. It does not appear from the evidence when plaintiff received defendants’ last communication, but in the testimony there appears a letter from Tufts addressed to defendants, of date February 8, acknowledging receipt of the first order with promise to furnish the apparatus in accordance with the order. The machine was shipped at Boston, May 25, fifty-five days after the time named in defendants’ order, or proposition; therefore, when the apparatus arrived, at Clinton, defendants refuse 1 to receive it, and on June 10, wrote to plaintiff, claiming a countermand of the order as well as plaintiff’s failure to ship the machine at the time stipulated, but offered to take the apparatus at the price named in the first order (to-wit, $425) if given three years to pay therefor or $140 at the end of each season until paid for. Thereupon plaintiff, by letter of June 13, offered to let defendants have the machine at said price provided defendants would give their three notes, bearing six-per-cent, interest, one for $140 due October 1, 1889, one for $140 due October 1, 1890, and one for $145 due October 1, 1891. Defendants then telegraphed Tufts that if he would pay the freight they would accept these terms, and to this plaintiff replied that he had accepted defendants’ offer of June 10, and would hold them to the terms thereof. Defendants declined to accept the apparatus or pay anything thereon, whereupon this suit was brought. The cause was tried before the court without the aid of a jury, and upon the facts as above, which were shown by the plaintiff’s evidence (defendants introducing no testimony) there was a finding and judgment for defendants, from which plaintiff now prosecutes this appeal.

It is clear, on a review of the foregoing facts, that we' must affirm this judgment. It is proper to say, that not only was the trial judge justified in finding for defendants, but this testimony would scarcely authorize any other judgment than that rendered. Waiving defendants’ countermand of the order for the machine (which said countermand was made February 5), and admitting plaintiff to have accepted the first order before such revocation, yet manifestly plaintiff had not complied with the terms of said alleged contract; and, as he had not complied on his part, then clearly he cannot call on the other party to respond in damages, or to pay the money called for in said agreement.

As to the alleged new agreement, based on the letters of June 10 and June 13, it is sufficient to say that by these letters no agreement was arrived at. The parties did not concur in the tenns'of a contract, and, hence, no new contract was ever made. Propositions were submitted by both parties, but no agreement as to terms was ever in fact reached.

Upon the evidence the judgment wás for the right party, and is affirmed.

All concur.