Chapman v. Kansas City, C. & S. R. Co.

• Decision Date: 13 March 1893
• Citation: 114 Mo. 542,21 S.W. 858
• Court: Missouri Supreme Court
• Parties: CHAPMAN et al. v. KANSAS CITY, C. & S. R. CO.

21 S.W. 858

114 Mo. 542

CHAPMAN et al. v. KANSAS CITY, C. & S. R. CO.

Supreme Court of Missouri, Division No. 1.

March 13, 1893.

CONSTRUCTION OF CONTRACT.

Under a contract providing that railroad ties to be furnished by plaintiffs to defendant should conform to certain specifications described therein, and that the ties be subject to inspection by any inspector whom defendant might send, defendant was not bound to accept or pay for any ties rejected by its inspector; it not being necessary that such contract should, in express terms, provide that the inspector's decision should be final.

Appeal from circuit court, Dade county; D. P. Stratton, Judge.

Action by J. H. Chapman and another against the Kansas City, Clinton & Springfield Railroad Company. Judgment for plaintiffs. Defendant appeals. Reversed.

Wallace Pratt, C. B. McAfee, and J. C. Cravens, for appellant. B. G. Boone, Mann & Talbutt, Geo. L. Mann, and Thurman & Wray, for respondents.

BLACK, C. J.

This is a suit to recover damages for an alleged breach of contract. The defendant railroad company, acting through its agent, H. P. Jacques, and William Chapman, acting for himself, executed the following contract on January 26, 1886: "Memorandum of Agreement Made with William Chapman, of Osceola, Missouri. The Kansas City, Clinton & Springfield Railroad Co. agrees to take from William Chapman, during the year 1886, 200,000 ties, 7 and 8 inch specifications. The 8-inch ties to be 40 cents each, and the 7-inch ties to be 35 cents each, on right of way. Said Chapman agrees to deliver the ties at the rate of not less than 15,000 per month from this date. The ties subject to inspection by any inspector whom we may be pleased to send. Not more than 25 per cent. of the ties to be 7-inch face." It appears William Chapman cut, or had cut, and delivered, a portion of the ties mentioned in this agreement, but he failed to make full compliance with its terms. He sold out his interest in the contract to J. H. Chapman and C. J Harrison, the plaintiffs in this suit, who proceeded with the work. Mr. Jacques, still acting for the defendant, sent to the plaintiffs the following letter, the terms of which were accepted by them, in writing, on the 30th November, 1886: "Gentlemen: Referring to the contract made with you January 26, 1886, for 200,000 ties, 7 and 8 inch specifications, this contract will be extended until filled, provided that the remainder are put out at the rate of not less than 10,000 per month. If this contract is carried out as per above, and is satisfactorily filled, you will be allowed to continue to get out ties on the territory you now have for the year 1887, provided you will agree not to furnish less than 10,000 ties per month, first-class ties; the price to be the same as under contract January 26, 1886." The plaintiffs completed the first of these contracts about the month of March, 1887, and then proceeded to furnish ties under the renewed contract. The breaches alleged are: First, that defendant failed and refused to accept and pay for 40,000 ties which the plaintiffs had placed on the defendant's right of way; second, that defendant refused to allow the plaintiffs to get out ties under the contract after the 1st July, 1887, whereby they lost a profit of five cents per tie on 180,000. The evidence tends to show that the inspections made under the first contract were very liberal to the plaintiffs; that Mr. Jacques complained of the ties furnished as far back as February, 1887. The plaintiffs, in a letter to him, admitted that the ties furnished south of a stated point on the line of the road were below the average. It appears the defendant made the contract for the purpose of increasing its freight receipts, and intended to sell the ties to other roads. Plaintiffs were informed of this fact; and on the 8th March, 1887, Mr. Jacques gave them full warning that the ties before received were not up to the contract standard, and they must expect a more rigid examination. In the month of July, 1887, the plaintiffs stopped getting out ties, in view of a correspondence between them and Mr. Jacques, but the ties then in the woods were hauled to the right of way for inspection and delivery. A large number were inspected and accepted in January, 1887, again in April of that year, and again in November. The plaintiffs claimed that this last inspection was too close, and they refused to allow the inspectors to go over all the...