6 S.W. 210 (Mo. 1887), Black River Lumber Co. v. Warner

Citation:6 S.W. 210, 93 Mo. 374
Opinion Judge:Black, J.
Party Name:Black River Lumber Company v. Warner, Appellant
Attorney:E. J. White for appellant. T. K. Skinker for respondent.
Case Date:December 19, 1887
Court:Supreme Court of Missouri
 
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Page 210

6 S.W. 210 (Mo. 1887)

93 Mo. 374

Black River Lumber Company

v.

Warner, Appellant

Supreme Court of Missouri

December 19, 1887

Appeal from St. Louis City Circuit Court. -- Hon. Shepard Barclay, Judge.

Reversed and remanded.

E. J. White for appellant.

(1) [a] As to first count, the question of agency or purchase should have been submitted to the jury. Clarke v. Hammerle, 27 Mo. 55; Mead v. Brotherton, 30 Mo. 201; Sawyer v. Railroad, 37 Mo. 240; Paine v. Kohl, 14 Neb. 580; Moss v. Green, 41 Mo. 390; Philibert v. Burber, 4 Mo.App. 470. (b) An instruction which assumes the existence of certain facts, as well as an instruction which assumes the existence of certain evidence to establish a certain fact, when no such evidence was introduced, is erroneous. Ewing v. Goss, 41 Mo. 492; Chouteau v. Seavey, 8 Mo. 733; Gersen v. Railroad, 60 Mo. 405; Insurance Co. v. St. Mary's Seminary, 52 Mo. 480; Peck v. Richey, 66 Mo. 114; Mascheck v. Railroad, 3 Mo.App. 600; Turner v. Railroad, 51 Mo. 50; Lester v. Railroad, 60 Mo. 265; Bank v. Armstrong, 62 Mo. 59. (2) [a] As to the second count, defendants, if liable at all, were liable only for the difference between the contract price and the market value of the lumber of contract dimensions. Whittman v. Coats, 14 Mo. 9; Northrup v. Cook et al., 39 Mo. 209; Koeltz v. Bloeckman, 46 Mo. 320; Chapman v. Ingram, 30 Wis. 290; Rickey v. Tenbroek, 63 Mo. 563; Masterson v. Mayor, 7 Hill, 62; Rider v. Kelley, 32 Vt. 268. (b) In the sale of property not in esse, the article must not only be made and offered to the vendee, but he must accept it, or it must be set apart for him, by his consent, before the title to it will rest in him. Rider v. Kelley, 32 Vt. 268; England v. Mortland, 3 Mo.App. 490; Hale v. Huntley, 21 Vt. 147; Jones v. Marsh, 22 Vt. 144; Gilman v. Hill, 36 N.H. 311; Comfort v. Kirsted, 32 Barb. 472; Johnson v. Hunt, 11 Wend. 137; Mixer v. Howarth, 21 Pick. 205; Ober v. Carson, 62 Mo. 209-213. (c) The court should have permitted the jury to determine as to whose duty it was, under the evidence, to have the lumber inspected. Edwards v. Smith, 63 Mo. 119; Amonett v. Montague, 63 Mo. 201; Insurance Co. v. St. Mary's Seminary, 52 Mo. 480; Singleton v. Insurance Co., 66 Mo. 63; Moss v. Green, 41 Mo. 390; Rollins v. Claybrook, 22 Mo. 406; Philibert v. Burber, 4 Mo.App. 470; Blair v. Corby, 37 Mo. 313; Hueske v. Bruessard, 55 Tex. 201; Mason v. Ryns, 26 Kas. 464; St. Louis Gas Light Co. v. City of St. Louis, 46 Mo. 121. (d) In refusing to permit the inspector sent to the mill to inspect the lumber, and in afterwards refusing to ship the lumber to St. Louis, when asked to do so, plaintiff was itself guilty of a breach of its contract, and became liable to defendants for their commissions on the whole bill. Denny v. Kile, 16 Mo. 455; Howland v. Leach, 16 Pick. 155. (e) Where the acts of the vendor himself are inconsistent with a sale and delivery, he cannot claim that the property has been sold and delivered. England v. Mortland, 3 Mo.App. 490. (3) [a] As to third count, if defendants were liable, in any event, on the third count of plaintiff's petition, they were liable only for the difference between the contract price and the market value of the lumber upon the market in St. Louis, where it was to be delivered, at the time of delivery. Masterson v. Mayor, 7 Hill, 62; Whitman v. Coats, 14 Mo. 9; Northrup v. Cook, 39 Mo. 208; McKing v. Dunlap, 5 N.Y. 537; Koeltz v. Bloeckman, 46 Mo. 320; Brown v. Nash, 9 Barn. & Cress. 145; Chapman v. Ingram, 30 Wis. 290; Shepherd v. Hampton, 3 Wheat. 200; Rickey v. Tenbroek, 63 Mo. 563; Day v. Dix, 9 Wend. 129; Allen v. Jarvis, 20 Conn. 48; Davis v. Shield, 24 Wend. 322; Rhodes v. Baird, 16 Ohio St. 580, 581; Clark v. Pinney, 9 Cow. 681; 1 Sedg. on Dam. 554, and note a, p. 586. (b) A simple breach of the contract on the part of defendant would not authorize the plaintiff to stop work and recover for the unperformed work. Such a breach might justify him in abandoning the work, and entitle him to recover for the work already done, but for a mere breach of the contract on the part of his adversaries he cannot stop the work and recover for alleged profits on unperformed work. Park v. Kitchen, 1 Mo.App. 357; Fitzgerald v. Howard, 50 Mo. 524.

T. K. Skinker for respondent.

(1) The trial court did not err in refusing to leave it to the jury to determine (a) whether defendants were plaintiff's agents to sell the lumber to the Clark Company; or (b) upon whom the duty of inspection devolved. 58 Mo. 290; 90 Mo. 639-640. (2) The plaintiff was properly allowed to recover, on the second count, the full price, at contract rates, of the lumber sawed according to the contract but not delivered, less the cost of delivery. Sedg. on Meas. of Dam. [5 Ed.] 333; 3 Pars. on Cont. [5 Ed.] *208; 2 Benj. on Sales [Corbin's Ed. 1883] sec. 1125, note 5; Benj. on Sales [Bennett's Ed. 1881] sec. 763, note 6; Graham v. Jackson, 14 East, 498; Dobbins v. Edmonds, 18 Mo.App. 307; Ballentine v. Robinson, 46 Pa. St. 177; Shawhan v. Van Nest, 25 Ohio St. 490; Smith v. Wheeler, 7 Oregon, 49; Bement v. Smith, 15 Wend. 493; Bagley v. Findlay, 82 Ill. 524; Bell v. Offutt, 10 Bush, 632, 639; Cook v. Brandeis, 3 Met. (Ky.) 557. (3) The failure of the defendants to have the sawed lumber inspected at the mill, and their absolute refusal at last to take any more lumber at all, dispensed with the necessity of making a tender at St. Louis, and authorized immediate suit as if tender had been made. Westlake v. The City of St. Louis, 77 Mo. 47-51; Deichmann v. Deichmann, 49 Mo. 107; Mastin v. Grimes, 87 Mo. 478; Canda v. Wick, 100 N.Y. 127; Ripley v. McLure, 18 L. J. Ex. 419; Goodwin v. Holbrook, 4 Wend. 377; Pearson v. Mason, 120 Mass. 53; Hayden v. Demets, 2 Jones & Sp. 344; Pittsburgh Bessemer S. R. Co. v. Hinckley, 17 F. 584; 121 U.S. 264. (4) The fact that there is among the sawed lumber some which does not comply with the contract (called culls) does not invalidate plaintiff's offer to deliver, or affect his right of recovery. (a) Because defendants' refusal to receive was not put on this ground. Wheelan v. Reilly, 61 Mo. 568; Adams v. Helm, 55 Mo. 471; Stokes v. Recknagel, 6 Jones & Sp. 368; Graham v. Jackson, 14 East, 498; Hayden v. Demets, 53 N.Y. 426. (b) Because under the contract, as interpreted by the acts of the parties, plaintiff was not bound to remove the culls before demanding inspection. Jones v. Delassus, 84 Mo. 541-545; Patterson v. Camden, 25 Mo. 13; Crawford v. Earl, 38 Wis. 312; Hunter v. Wetsell, 84 N.Y. 554-555. (c) Because the...

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