Fountain v. Wabash R. Co.

• Decision Date: 06 November 1905
• Citation: 114 Mo. App. 676,90 S.W. 393
• Parties: FOUNTAIN et al. v. WABASH R. CO.
• Court: Missouri Court of Appeals

90 S.W. 393

114 Mo. App. 676

FOUNTAIN et al. v. WABASH R. CO.

Kansas City Court of Appeals. Missouri.

November 6, 1905.

1. RELEASE—BREACH OF CONTRACT—CONSIDERATION.

Though the agreement of the local agent of a carrier with a shipper, who applies for cars in which to make a shipment, to furnish him cars on a certain day, constitutes a contract, liability on which for damages for delay in shipment accrues on the failure to furnish them at such time, the cause of action may be released by a subsequent contract for the shipment, which for a consideration provides for such release.

2. SAME—MEETING OF MINDS.

The stipulation in a contract of shipment that, in consideration of a certain reduced freight rate, all cause of action for breach of a prior contract is released, falls for failure of the minds of the parties to meet, if the rate is not a reduced one.

3. EVIDENCE—OPINION AS TO MARKET VALUE.

A witness experienced in the business of dealing in the commodity in question is not disqualified to testify to its market value, though his opinion is in part influenced by reading market reports in trade journals or newspapers, or by communications from other dealers.

4. EVIDENCE—MARKET VALUE—HEARSAY.

A witness competent to give his opinion as to market value may not state the contents of a telegram from a dealer purporting to give information on the subject of market value, or the value published by trade journals in their market reports; this being hearsay.

Appeal from Circuit Court, Boone County; John A. Hockaday, Judge.

Action by R. M. Fountain and others against the Wabash Railroad Company. Judgment for plaintiff. Defendant appeals. Reversed.

Geo. S. Grover and N. T. Gentry, for appellant. Thomas S. Carter and Gillespy & Conley, for respondents.

JOHNSON, J.

This action was brought before a justice of the peace to recover damages resulting from the breach of a verbal contract alleged to have been made by the parties, by which defendant undertook and agreed to furnish plaintiffs four stock cars at a certain time and place for the shipment of 77 head of cattle to market. On appeal the case was tried in the circuit court, resulting in a judgment in favor of plaintiffs, from which defendant appealed. Facts appearing in evidence are as follows: Plaintiffs, who are stock shippers living near Sturgeon, applied to defendant's agent at that point for four cars in which to ship the cattle from Sturgeon to St. Louis. After some delay, the agent agreed to have the cars at the stock pens on a certain day in time for the shipment to go forward in a certain train, and directed plaintiffs to have their cattle in the pens, so that they could be loaded into the cars before the arrival of this train. Following this direction, plaintiffs drove their cattle in from the country, and placed them in the pens as directed, but the promised cars failed to arrive, and were not received until after the lapse of five days from the appointed time. In the meantime, plaintiffs were compelled, in order to properly feed and care for the cattle, to remove them from the railroad pens to feed lots. Expense was incurred for feed and attention, the cattle suffered a loss in weight, and the market declined. When the cars arrived, plaintiffs changed the destination of the shipment from St. Louis to Chicago, and entered into a written contract with defendant for their transporation to the stockyards in the latter city, where they were delivered by defendant, and sold on the market by plaintiffs.

One of the errors assigned by defendant is the refusal of the trial court to admit in evidence the written contract providing for the carriage of the cattle to Chicago. This contract was signed by both parties, and under its terms defendant received the cattle for transportation to the destination named "at the rate of eighteen and one-half cents per cwt., which is a reduced rate expressly agreed upon between the parties hereto, and in consideration of which rate the party of the second part [plaintiffs] stipulates and agrees as follows: * * * Eighth. * * * And in consideration of said rate herein named, the shipper hereby releases and waives any and all cause or causes of action that may have accrued to him by reason of any written or verbal contract prior to the execution of this contract." Defendant in its answer pleaded this condition as a waiver of the cause of action sued upon, and tendered the issue that the rate provided was in fact a reduced rate, and therefore a sufficient consideration for the waiver.

We are of the opinion that the verbal agreement made by the parties constituted a contract, which imposed a duty upon defendant to furnish the cars as agreed, and that, in consequence of a breach of that duty, defendant became liable to plaintiffs for the damages thereby sustained. We agree with plaintiffs that the...