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

• Citation: 146 Mo. 481,48 S.W. 646
• Court: United States State Supreme Court of Missouri
• Decision Date: 15 November 1898
• Parties: CHAPMAN et al. v. KANSAS CITY, C. & S. RY. CO.

48 S.W. 646

146 Mo. 481

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

Supreme Court of Missouri, Division No. 1.

November 15, 1898.

BREACH OF CONTRACT — ACTION — EVIDENCE — TRIAL — QUESTIONS FOR JURY — INSTRUCTIONS — RES JUDICATA — MEASURE OF DAMAGES — REVIEW.

1. Where, in an action for breach of contract, plaintiff claims that his performance was prevented by certain correspondence with defendant's agent, it is proper to submit the correspondence to the jury.

2. In an action for breach of contract for furnishing ties, plaintiff introduced certain letters from defendant's agent, one of which stated that plaintiff need not get out any more ties if he expected defendant to take them. Held, that a finding that the letter warranted plaintiff in stopping his work was authorized.

3. Where a party engaged in the performance of a contract is notified by the other to proceed no further, the party notified is justified in quitting the work, and suing for breach of contract.

4. Where a contract for getting out ties provides for an inspection by an inspector sent out by one of the parties, evidence as to the quality of the ties furnished is inadmissible, as the decision of the inspector was conclusive.

5. Where a cause comes before the court on a second appeal, all matters passed on in the former decision are res adjudicata.

6. A contract for getting out ties provided for an inspection by defendant's inspector. In an action for its breach, defendant offered testimony as to the character of an inspection made by its inspectors when they were stopped by plaintiff. Held, the exclusion of the testimony did not prejudice defendant, as the ties were accepted under a subsequent inspection.

7. In an action for breach of contract to receive ties, defendant offered to show, by a party to whom it sold some of the ties, their quality, and whether they were salable. The parties had agreed to settle as to such ties sold on the basis of an inspection made by the purchaser. Held, the evidence was properly excluded, as it was immaterial what kind of ties such purchaser accepted or rejected.

8. In an action for breach of contract for furnishing ties providing for a stipulated number per month, to be composed of eight-inch, and not more than 25 per cent. seven-inch, ties, the jury were instructed that plaintiff was required to furnish the number agreed on per month, but they must not find against him because of all the ties furnished there were more than 25 per cent. seven-inch ties. Held not error, as the evidence showed there was to be an inspection, and both parties contemplated the rejection of some of the ties furnished.

9. Plaintiff sued to recover for breach of contract to receive ties. Defendant claimed a settlement by a subsequent contract. Such contract related to ties delivered before the breach. Held, that defendant's contention was untenable, as such contract did not release defendant from liability for breach of the original contract.

10. In an action for breach of contract to receive ties, the measure of damages is the difference between the contract price and the cost of getting out and delivering them.

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

Action by J. H. Chapman and others against the Kansas City, Clinton & Springfield Railway Company for damages for breach of contract. There was a judgment for plaintiffs, and defendant appeals. Affirmed.

Wallace Pratt and Goode & Cravens, for appellant. Geo. L. Mann, Mann & Talbott, and Thurman & Wray, for respondents.

ROBINSON, J.

This case was here on a former appeal by defendant, when it was reversed, and remanded for a new trial. The opinion on the first appeal is reported in 114 Mo. 542, 21 S. W. 858. Another trial was had before a jury, resulting in a verdict of $5,000 for the plaintiffs. After an ineffectual motion for a new trial, defendant again appealed to this court.

This controversy arose out of an alleged breach of a tie contract. In January, 1886, the defendant made a contract with William Chapman to receive 200,000 seven and eight inch specification ties at 35 and 40 cents, respectively, on its right of way known as the "Clinton Branch," running from Olathe, Kan., to Ash Grove, Mo., the ties to be subject to inspection by any inspector the defendant might send, and to contain not more than 25 per cent. seven-inch ties. Chapman was given the exclusive right to furnish ties on the defendant's line for the period of one year thereafter, and in consideration therefor was to deliver not less than 15,000 specification ties per month. In November following, and after Chapman had failed to fulfill his contract, and when 83,000 ties remained to be delivered under the contract, the defendant, by a supplemental agreement, extended the original contract until fulfilled, providing, however, not less than 10,000 ties a month were delivered. The latter agreement further provided that if the first contract, as thereby modified, was satisfactorily carried out, the plaintiffs would be given the exclusive privilege of getting out ties on the same territory for and during the year of 1887 at the rate of not less than 10,000 per month, not more than 25 per cent. of which should be seven-inch face, at the original contract price. The plaintiff Harrison was a party to the last contract, the business being carried on under the firm name and style of Chapman & Harrison. The amended petition upon which the second trial was had, alleged performance of the contract on the part of the plaintiffs, and assigned as breaches: "First, That on July 6, 1887, they were prevented by the defendant from getting out any more ties under the contract after that date; that they could have gotten out and delivered on defendant's right of way one hundred and eighty thousand ties, which would have given them a profit of five cents on each tie; and that they were entitled to recover the profits which they could have made by continuing to furnish ties throughout the year. Second. That the defendant failed and refused to inspect and receive certain ties which plaintiffs had placed on the right of way at the time they quit getting out ties, whereby they were damaged by shrinking, failure to inspect, and loss of ties burned and carried off from right of way." The circuit court having held that there could be no recovery as to the second assignment, it is unnecessary to notice that branch of the case. The answer admits the execution of the contract, but denies that plaintiffs performed the same on their part; admits advising the plaintiffs not to get out any more ties if they expected defendant to take them, but avers that under the circumstances they had a right so to do; denies, however, that plaintiffs were stopped or prevented from getting out any more ties under the contract; and sets up as a modification of the contract an alleged agreement on the part of plaintiffs to accept the inspection of J. I. Blair as the basis of settlement with defendant for all ties delivered thereunder. The plaintiffs replied by a general denial.

The defendant assigns for error on the present appeal the action of the circuit court in giving erroneous instructions for plaintiffs, and the refusal of proper declarations of law offered on behalf of defendant; the admission of illegal testimony for plaintiffs, and the exclusion of testimony as to the poor and unsalable quality of the ties furnished by plaintiffs, as to a large percentage of culls among them, that they intended to drive purchasers off the road, and other similar testimony offered by the defendant. The plaintiffs claim that they were stopped and prevented by defendant's tie agent, Mr. Jacques, from giving out any more ties under their contract after the 6th of July, 1887. The evidence relied upon to establish this fact arises wholly upon certain correspondence between Jacques and the plaintiffs. On April 25, 1887, Jacques wrote plaintiffs: "From the way things look now, I am going to have hard work to dispose of the ties gotten out on the Clinton road, and this is to give you due notice that any ties gotten out must be on your own responsibility. In the course of four or five weeks I shall have my entire contract filled, and after that, where the business is coming from, I do not know. If you see fit to get out the ties, and hold them subject to my sales, well and good, but we cannot agree to take your product unless we sell." In reply thereto, the plaintiffs wrote Jacques on the next day after the receipt thereof, stating that it would be a great disappointment to them if they had to close out business on the Clinton road; that they could not close without another inspection, which might be given them on the 1st of June; that in the meantime they would either write or see him in person, and, if the outlook still looked discouraging, he could advise them accordingly. Jacques, in reply, under date April 28th, suggested, in substance, that the letter of April 25th was merely for the purpose of warning the plaintiffs of what might happen so they might get themselves in shape, and that it would be necessary to get their inspection up so as to be prepared for a more rigid inspection in the future. On April 30th plaintiffs wrote Jacques, saying that a good many culls had been put upon the road in hopes that defendant might be able to use them as culls, and not as specification ties, and requested him to take the same as soon as he possibly could, promising to do better in the future. Then followed a correspondence during the month of June, in which Jacques wrote, urging improvement, and stating that plaintiffs might look for a more rigid examination thereafter. On July 6th Jacques again wrote the plaintiffs, stating: "I am of the firm opinion that you had better get out no more ties on the Clinton road. I find it is getting to be hard work even to dispose of those you have out, as the parties are not satisfied with the ties that come...