Barber v. Ozark Imp. Co.

• Decision Date: 26 May 1908
• Citation: 131 Mo. App. 717,111 S.W. 846
• Parties: BARBER v. OZARK IMP. CO.
• Court: Missouri Court of Appeals

111 S.W. 846

131 Mo. App. 717

BARBER v. OZARK IMP. CO.

St. Louis Court of Appeals. Missouri.

May 26, 1908.

1. SALES—CONSTRUCTION OF CONTRACT—TIME OF DELIVERY.

In reply to defendant's offer to sell wood, plaintiff answered that he would take 300 or 400 cords at a certain price, delivery to be made during July, August, and September, as required by him, to which defendant replied that it would deliver 300 or 400 cords in July, August, and September at the price named, and some time thereafter plaintiff wrote defendant that he desired to increase the order from 400 to 800 cords to be shipped as needed from now until all or more is used, and defendant replied thereto that he would agree to furnish the 800 cords as required. Held that, considering the correspondence as a whole, defendant agreed to deliver plaintiff 500 to 800 cords of wood, all of which should be delivered in the month of July, August, or September.

2. SAME — TIME OF PERFORMANCE — TIME AS ESSENCE.

Where defendant agreed to deliver to plaintiff a number of cords of wood during July, August, and September as required by plaintiff,

the time of delivery was of the essence of the contract.

3. SAME — EVIDENCE — TIME OF PERFORMANCE.

In an action on a contract by defendant to deliver a number of cords of wood during the winter months of a certain year, evidence held to show that the contract was not to deliver the wood at that time, but during the summer months.

4. CONTRACTS — ACTION — PLEADING — VARIANCE.

A party cannot sue upon one contract and recover upon another.

Appeal from Circuit Court, Howell County; W. N. Evans, Judge.

Action by E. A. Barber against the Ozark Improvement Company. From a judgment for defendant, plaintiff appeals. Affirmed.

M. C. Smith, for appellant. Livingston & Livingston, for respondent.

BLAND, P. J.

The petition alleges, in substance, that defendant, a corporation, agreed to sell and deliver to plaintiff 800 cords of wood at $3 per cord, f. o. b. Springfield, Mo., during the winter season of 1905-06, delivery to begin August 23, 1905, and to continue thereafter at demand of plaintiff, plaintiff to pay for said wood upon delivery; that on August 28, 1905, defendant delivered 16 cords of wood under the contract, but thereafter failed and refused to deliver the balance of said wood on plaintiff's demand; that, by reason of the breach of the contract, plaintiff was damaged in the sum of $1,600. The answer was a general denial. The issues were submitted to the court without the intervention of a jury. At the close of plaintiff's case the court found the issues for defendant.

To prove the contract plaintiff offered a rather extended letter correspondence between himself and defendant. We copy the correspondence relied on to make out the contract. On April 22, 1905, defendant wrote plaintiff as follows: "We are on the market with several cords of seasoned wood, four feet long, made of oak. We can deliver at Springfield, f. o. b. cars, at $3 per cord."

Plaintiff replied to the above letter, on the same date, as follows: "Your letter received. I will take all of your 300 or 400 cords of good merchantable black oak and black jack cord wood at your quotation of $3 per cord f. o. b. Springfield. Delivery to be made during July, August, and September, as...