Antrim Lumber Co. v. Daly

• Decision Date: 18 December 1916
• Docket Number: No. 11778.,11778.
• Citation: 190 S.W. 971
• Parties: ANTRIM LUMBER CO. v. DALY.
• Court: Missouri Court of Appeals

190 S.W. 971

ANTRIM LUMBER CO. v. DALY.

No. 11778.

Kansas City Court of Appeals. Missouri.

December 18, 1916.

Appeal from Circuit Court, Bates County; C. A. Calvird, Judge.

"Not to be officially published."

Action by the Antrim Lumber Company against J. A. Daly. From judgment for defendant, plaintiff appeals. Affirmed.

Charles E. Gilbert, of Nevada, Mo., for appellant. W. M. Bowker and S. A. Wight, both of Nevada, Mo., for respondent.

ELLISON, P. J.

This action is for the price of a carload of lumber shipped to defendant on his order. Defendant set up in his answer that the lumber was ordered for a certain purpose, and that it was unfit for such purpose and for that reason defendant asked judgment for the amount he paid out in freight, together with cost of unloading. There was a judgment for defendant for $50, and plaintiff appealed.

Plaintiff makes but two points against the judgment: The first, that its written acceptance of defendant's order was plain and unambiguous and constituted the written contract which could not be varied in its terms, and that therefore the trial court erred in admitting in evidence any letter or letters written by defendant; the second, that the verdict was against the evidence, the weight of the evidence, and the law under the evidence.

There is no doubt that plaintiff's statement of the law forbidding evidence aliunde the written contract to vary its terms is correct. But we do not agree with plaintiff that evidence aliunde the contract was admitted. The particular matter complained of was defendant's letter ordering the lumber. Plaintiff insists that the complete contract is embodied in its answer to this order itemizing the lumber and asking that defendant check it up, and, if correct, to notify it, when immediate shipment would be made. The facts do not bear out this insistence.

On the 15th of August, 1913, defendant wrote plaintiff asking quotations on a certain lot of lumber f. o. b. on car at Osage, Okl., with which to build a boat, the lumber to be "strictly No. 1 stuff with no sap streaks. Kindly let us have your quotations as early as possible." In a few days plaintiff wrote to defendant that it was quoting prices "on high grade material." On the 10th of September following plaintiff mailed to defendant an itemized list of the lumber with prices. Heading these items is this statement:

"This order [defendant's] is accepted subject to the terms and conditions on back thereof."

Following the items is this:

"Please check over carefully and if not O. K. advise us promptly. Not hearing from you to the contrary we will ship as entered."

At the close of this communication are these words:

"This is an acknowledgment of your order as entered, and we ask you to kindly check it over very carefully. Not hearing from you by return mail, we will assume same has been entered to your entire satisfaction. We appreciate the business and thank you kindly for same."

Now these communications from plaintiff to defendant show on their face that the contract is founded upon an order from defendant, and necessarily the transaction could not become known in its completeness, without reference to that order. These communications compose parts of the contract, and hence the court did not err in admitting them in...