Chouteau v. Jupiter Iron-Works

• Decision Date: 19 March 1888
• Citation: 94 Mo. 388,7 S.W. 467
• Parties: CHOUTEAU v. JUPITER IRON-WORKS.
• Court: Missouri Supreme Court

7 S.W. 467

94 Mo. 388

CHOUTEAU v. JUPITER IRON-WORKS.

Supreme Court of Missouri.

March 19, 1888.

1. CONTRACTS — RESCISSION — PAROL.

A written contract may be rescinded by parol, and the agreement to rescind may be inferred from acts and declarations of the parties.

2. SAME.

In a suit on a written contract, by which plaintiff was to operate the iron-works of defendant, evidence that other works, which were expected to consume the product of the works in question, suspended operations, was properly admitted, as tending to show that it was for the interest of plaintiff to abandon the contract.

3. SAME — ACTION FOR BREACH — EVIDENCE.

In an action for damages for refusal to allow plaintiff to operate the iron-works of defendant according to contract, evidence as to the actual output of the works in question during the year for which damages are claimed, was properly received.

4. SAME.

In an action for damages, where defendant refused to allow plaintiff to operate certain iron-works according to contract, evidence that iron-works in that locality were at times compelled to close up, for specified reasons, was properly received.

5. SAME — BREACH — DEFENSE OF ABANDONMENT.

It was error for the court below to limit, by instructions to the jury, an abandonment of a contract to a particular time to which the answer did not confine the alleged rescission.

6. TRIAL — INSTRUCTIONS — REQUEST FOR ADDITIONAL INSTRUCTIONS BY JURY.

It is error for the trial court to send additional instructions to the jury-room, in response to a written request from the jury, without the knowledge of the parties litigant, and without giving them an opportunity of being heard.

Appeal from St Louis circuit court; AMOS M. THAYER, Judge.

S. Hermann and Hitchcock, Madill & Finkelnburg, for appellant. Boyle, Adams & McKeighan, for respondent.

BLACK, J.

This is a suit to recover damages for the alleged refusal of the defendant to permit the plaintiff to execute a contract which he had with defendant. The defendant is a corporation under the laws of this state. By the terms of the contract, plaintiff was to take charge of and operate the furnace to the best of his ability, furnish the labor, unload the coal, coke, ore, and limestone required by the furnace, and to take the iron from the cast-house. Defendant agreed to furnish such ores as were best adapted for making Bessemer metal, "Big Muddy Coal," and "Connellsville Coke." The material going into the furnace, and the pig-iron coming from the cast-house, to be weighed at expense of defendant. Defendant was to pay the plaintiff $2.30 per ton for the iron made. It is further provided that the contract shall be in full force for one year from the time of lighting the furnace. The contract bears date 27th March, 1877. The answer is a general denial, and it sets up an abandonment of the contract by the mutual consent of the parties. There was a verdict for the plaintiff, with nominal damages, and he appealed. The errors assigned relate (1) to the admission of evidence on behalf of the defendant; (2) the exclusion of evidence offered by the plaintiff; (3) refusal to give instructions asked by the plaintiff; (4) giving of instructions by the court of its own motion, and at the request of defendant; and (5) communicating with the jury, and giving an additional instruction, after the cause had been submitted. The Jupiter was a new furnace, and at the date of the contract in suit had never been in blast. It was located in close proximity to the Vulcan iron-works, which had three furnaces and machinery for making Bessemer steel rails. Plaintiff, his father, and the Garisons owned the stock of the Jupiter, and the principal stockholders of that corporation were also shareholders in the Vulcan. The principal object of making the contract in suit, and of then starting the Jupiter, was to furnish pig-iron for the Vulcan, and this was well known to all of the contracting parties. There is evidence tending to show that, in view of getting the contract, plaintiff agreed to furnish the money necessary to put the Jupiter in working order, and to superintend the work. Some expressions of the witnesses, detached from their other evidence, tend to show that plaintiff's services in this behalf had no connection with the contract in suit, but the weight of the evidence shows that he rendered them without pay in view of the contract. He, through his father, furnished the money, and put the Jupiter in order, and in May, 1877, this work was completed, with the exception of the erection of one boiler not yet made. The money advanced was repaid to plaintiff's father in the fall of 1877. In May, 1877, the iron market declined. The machinery of the Vulcan proved to be defective for manufacturing Bessemer rails. That company became financially embarrassed, and in October, 1877, closed down, and as a consequence the Jupiter did not begin operations. Both furnaces remained closed until November, 1879, when the Jupiter was leased to the Vulcan for five years from 1st December, 1879, and under that lease was, for the first time, put in blast. There is no evidence of a formal cancellation of the contract between the plaintiff and the defendant, but there is much evidence, consisting in part of the declarations of plaintiff, tending to show a full and complete abandonment of the contract before the Jupiter was leased to the Vulcan. The details of this evidence need not be given.

1. There can be no doubt but a written contract may be rescinded or abandoned by parol. It is not necessary to show an express agreement to that effect, but the agreement to rescind may be inferred from the acts and declarations of the parties. In determining whether a party gave his consent to a rescission, it is proper to inquire whether it was to his interest to do so. Fine v. Rogers, 15 Mo. 316. And so, too, we may look to the object and purposes had in view when making the original contract, and in doing this the parties are not confined to the original contract. The rescission is, in effect, a new contract, putting an end to an existing one, and any fact constituting a link in the chain of circumstances is competent evidence. It was therefore proper for the defendant to show that it was understood by the parties to the contract that the product of the Jupiter was to be used by the Vulcan, and especially in view of the other evidence that the Vulcan converting works became disabled, and could not consume the pig-iron made by the Jupiter.

2. There was no error in receiving evidence of the actual output of the Jupiter in 1880, for the purpose of disclosing its productive capacity. This evidence was objected to because it was not at the same time shown that the fuel and ores used were the same as specified in the contract; but the court at the same time ruled that any difference in this respect could be shown, as well as the difference it would make in the production. The Jupiter was a new, untried furnace, one of the largest in the country, being 20¾ feet in the boshes, and some 75 feet in height. The year 1880 is the one for which damages are claimed, and evidence of what the furnace did produce, explained by evidence of the difference in the ores and fuel used, and agreed to be used, was vastly more valuable than any expert evidence that could be produced. When the facts can be detailed so as to be understood and applied to the subject of inquiry, they are always to be preferred to expert evidence.

3. The evidence that the plaintiff received dividends on his stock, arising from the lease of the Jupiter to the Vulcan, might well have been rejected; for he was entitled to the dividends, whether arising from the lease, the operation of the furnace by the company, or under his contract. There was no real inconsistency between his receipt of the dividends and his claim set up to the contract. But we are of the opinion the reception of this evidence does not constitute reversible error. The evidence as to the substantial facts was fully developed; and the jurors could have had no trouble in seeing that this evidence was of no value. Besides all this, the evidence was before the jury before any specific objection was made to it; and it does not appear that any motion was made to exclude it.

4. There was evidence offered and received, over the objections of the defendant, to the effect that the furnaces at Carondelet were sometimes compelled to close up because of the difficulty in getting and keeping on hand a full supply of coke of the kind specified in the contract. The defendant could, of course, make a contract binding itself to keep on hand a constant supply of fuel, but it is not so stated in the contract. The contract is in very general terms, but it does provide that, "should it be necessary to bank up the furnace, the Jupiter Iron Company to pay the wages of such men as may be actually required to care for the furnace." This provision, considered in the light of the general terms of the contract, shows that stoppages were contemplated, and, no specific reason therefor being given, it must have reference to the usual vicissitudes and incidents that interrupt operations of the furnaces in the locality of the Jupiter. It was proper to take account of such matters in determining the probable working-days of the furnace.

5. The plaintiff by his witness, Mr. Perry, instituted a comparison between the productive capacity of the Jupiter and No. 3 furnace of the Vulcan, and then asked him whether the facilities of the Vulcan, that is, her machinery and apparatus, were better than those of the Jupiter, which evidence was excluded. The size and productive capacity of the Vulcan had been given, and the character of her machinery was disclosed by more specific evidence. The facts were in evidence from which the jury could make the deduction sought to be shown by the witness, and there is no reversible error in the ruling of the court. Other...