American Linseed Co. v. Eberson

• Decision Date: 25 June 1907
• Citation: 126 Mo. App. 426,104 S.W. 121
• Parties: AMERICAN LINSEED CO. v. EBERSON.
• Court: Missouri Court of Appeals

104 S.W. 121

126 Mo. App. 426

AMERICAN LINSEED CO. v. EBERSON.

St. Louis Court of Appeals. Missouri.

June 25, 1907.

1. SALES — CONTRACTS — CONSTRUCTION — DELIVERY.

Defendant purchased 300 barrels of linseed oil from plaintiff May 28, 1901, to be taken at defendant's option "during" the months of October, November, and December, 1901. On September 7, 1901, another contract for 120 barrels was made, for delivery at defendant's option "between" October 1, 1901, and January 30, 1902, and on September 12th another contract for 120 barrels was made, deliverable, at defendant's option, "during the period" from October 1, 1901, to June 30, 1902. Held, that defendant was entitled to call for deliveries under such contracts at his option within the time specified in amounts to suit his convenience, and was therefore entitled to demand a delivery of all the oil at any time within the dates named.

2. SAME — DEMAND FOR DELIVERY.

Where defendant had three contracts for the purchase of linseed oil, deliverable at his option within specified dates, defendant's demand for a delivery of all the oil contracted for, was sufficient to cover all the contracts under which plaintiff was bound to deliver oil at the date delivery was required under the option.

Bland, P. J., dissenting.

Appeal from St. Louis Circuit Court; Moses N. Sale, Judge.

Action by the American Linseed Company against Alexander A. Eberson. From a judgment for plaintiff, defendant appeals. Reversed.

S. T. G. Smith and Thos. Meng, for appellant. H. L. Hornsby and Klein & Hough, for respondent.

GOODE, J.

This is an action for the balance due on the purchase price of linseed oil sold and delivered by plaintiff to defendant. The contract was for 1,000 barrels of oil, of which it is alleged the defendant paid for 920 barrels, and owes for the remaining 80 the sum of $1,834.90. The first paragraph of the contract under which the oil in controversy was sold will be quoted for the purpose of comparing it with the other contracts which are in controversy. Said paragraph reads as follows:

"St. Louis, Mo. Sept. 12th, 1902.

"A. A. Eberson & Co., City — Dear Sirs: This will confirm sale made you Sept. 12th of 1000 barrels linseed oil for delivery during the period from November 1st, 1902, to August 1st, 1903, it being understood that you are to take not less than 75 barrels per month and not over 180 in any one month."

Following that paragraph are statements of the price of raw oil at the different dates between November 1, 1902, and August 1, 1903, and other paragraphs stating variations in the prices of boiled oil and bleached oil. Then follows these paragraphs:

"You have the option of taking such amounts as you desire in bulk, the price to be 2¢ per gal. less.

"Terms, 30 days net, or 1 per cent for cash paid within ten days of date of invoice."

The petition is in the usual form for a balance due on merchandise sold and delivered. The answer is a general denial, and three counterclaims for damages alleged to have been sustained by the defendant in consequence of plaintiff having refused to deliver to him the oil as called for in three distinct contracts of purchase, which are in no way connected with the contract on which plaintiff sues, they having been made in 1901 and prior to the date of the contract in suit. The first counterclaim is based on the following written contract:

"American Linseed Company, St. Louis. C. W. Blow, Manager. St. Louis, Mo., 5-28-1901.

"Messrs. A. A. Eberson & Co., City — Gentlemen: We beg to confirm sale made you yesterday of 300 bbls. of linseed oil at 44¢, basis raw for each 7½ lbs. 1¢ advance for boiled and 3¢ for bleached. Bulk shipments at 2¢ less. Terms 60 days from date of each invoice or 1 per cent for cash in 10 days. The oil to be taken by you at your option during the months of October, November and December, 1901. Thanking you and awaiting your counter-confirmation, beg to remain,

"Yours very truly, C. W. Blow, Mgr."

After pleading the substance of said contract, defendant alleges that on September 26, 1901, he notified and required plaintiff to deliver on the 1st day of October, 1901, the oil called for by the contract; that in response to this request, plaintiff delivered on said date 20 barrels, and no more; that on October 1st, 2d, 3d, and 4th, defendant made other demands for the delivery of the oil, but plaintiff refused to comply, and, instead of delivering all of said oil as demanded, delivered it as follows: October 1, 1901, 20 barrels; October 2, 1901, 7 barrels; October 3, 1901, 18 barrels; October 4, 1901, 5 barrels; October 7, 1901, 16 barrels; October 14, 1901, 2 barrels; October 15, 1901, 2½ barrels; October 17, 1901, 34 barrels; October 22, 1901, 65 barrels; October 23, 1901, 5 barrels; October 25, 1901, 5 barrels; October 29, 1901, 5 barrels; November 4, 1901, 15 barrels; November 5, 1901, 1 barrel; November 11, 1901, 15 barrels; November 15, 1901, 15 barrels; November 18, 1901, 20 barrels; November 21, 1901, 7 barrels; December 20, 1901, 3 barrels; December 26, 1901, 5 barrels; January 3, 1902, 31½ barrels. It is further alleged that the market value of the oil on October 1, 1901, was 65 cents for each 7½ pounds — that is one gallon — and that, on the various days when the oil was delivered, the price had sunk to different sums each less than what oil was worth on October 1st, in consequence of which the defendant suffered a loss of $1,612, for which he prays judgment.

The second counterclaim is based on the following contract:

"American Linseed Company, St. Louis. C. W. Blow, Manager. St. Louis, Mo., Sept. 7th, 1901.

"A. A. Eberson & Co., City — Gentlemen: We beg to acknowledge receipt of your esteemed order for 120 bbls. of linseed oil for delivery at your option between Oct. 1st 1901 and Jan. 30, 1902.

                Raw at .................... 40¢ for each 7½ lbs
                Boiled, at ................ 41¢  "   "   7½ lbs
                Bleached, at .............. 44¢  "   "   7½ lbs
                

"Terms, 30 days or 1 per cent for cash in 10 days. Please issue counter-confirmation. We thank you for favoring us.

"Yours very truly, C. W. Blow, Mgr.

                "Correct this, please, to read June 30th
                The delivery on above is Oct. 1, 1901, to June
                30, 1902.             C. W. Blow, Mgr."
                

Defendant alleges that on September 26, 1901, he notified and requested plaintiff to deliver the oil called for by the contract last aforesaid, which defendant refused to do. Other demands for delivery of the oil are also averred, with the further averment that the demands were not complied with, and that, instead of compliance, plaintiff delivered 60 barrels of the oil on October 15th and 60 barrels on October 16th, whereby, on account of the difference in the prices of oil on October 1st and the days of its delivery, plaintiff sustained a loss of $811.20, for which he prays judgment.

The third counterclaim is based on the following contract:

"American Linseed Company, St. Louis. C. W. Blow, Manager. St. Louis, Mo., 9-12-1901.

"Messrs. A. A. Eberson & Co., City—Gentlemen: Beg to confirm sale made you on the 9th for 120 bbls. of linseed oil for delivery at your option during the period from Oct. 1st, 1901, to June 30, 1902, at 40¢ for each 7½ lbs. of raw oil; 41¢ for each 7½ lbs. of boiled oil; 44¢ for each 7½ lbs. bleached oil delivered. Terms, 30 days or 1 per cent for case in 10 days from date of each invoice. Kindly favor us with your counter-confirmation by return mail and oblige,

"Yours very truly, C. W. Blow, Mgr."

It is alleged that on September 26th defendant requested the delivery of the oil called for by the last-stated contract, and made subsequently other requests for its delivery, all of which plaintiff refused to comply with; that instead, he delivered 60 barrels of oil on October 16th and 60 on October 17th; that in consequence of the lower price of oil on those dates, as compared with its price on October 1st, the defendant sustained a loss of $811.20, for which he prays judgment.

A replication was filed in which the allegations of the three counterclaims are denied, and it is also further alleged that defendant is not entitled to recover on the counterclaims because plaintiff was not bound to deliver all the oil mentioned under the contracts at any one time or on any of the days on which defendant alleges he demanded delivery. It is further averred in the reply that plaintiff delivered all the oil mentioned in the counterclaims, and defendant received and accepted the same as performance of the terms of the several contracts, paid the purchase price of the oil, and that by an agreement and understanding between plaintiff and defendant the latter waived any right "he may have had for the delivery of all of said oil at any one time, or at any time prior to the actual delivery thereof." The several contracts on which the counterclaims are based were introduced in evidence, with testimony to prove defendant demanded delivery of all the oil called for by the three contracts (540 barrels) on October 1, 1901. This demand was in writing, and dated September 26th. There were also subsequent oral demands. Plaintiff's manager in St. Louis refused to make delivery on October 1st, contending that defendant was not entitled to full delivery of the oil called for by any one contract on a single day; but, on the contrary, that plaintiff was entitled to make delivery from time to time during the period mentioned in each contract. The evidence also showed that, instead of making the deliveries as contemplated by defendant, the plaintiff delivered on the days and in the quantities stated in the answer. Defendant protested against this mode of delivery, and asserted that he was entitled to delivery of all the oil called for by each of the contracts entered into in 1901 on October 1st, in accordance with his demand, and that he would hold plaintiff liable for the loss sustained in consequence of its refusal thus to deliver. On October 1, 1901, linseed oil was...