Bird v. Fox

• Decision Date: 05 March 1917
• Docket Number: No. 12239.,12239.
• Citation: 193 S.W. 941
• Parties: BIRD v. FOX.
• Court: Missouri Court of Appeals

193 S.W. 941

BIRD v. FOX.

No. 12239.

Kansas City Court of Appeals. Missouri.

March 5, 1917.

Rehearing Denied April 2, 1917.

Appeal from Circuit Court, Jackson County; Thomas J. Seehorn, Judge.

"Not to be officially published."

Action by S. M. Bird against C. B. Fox. Judgment for plaintiff, and defendant appeals. Affirmed.

W. F. Zumbrunn, of Kansas City for appellant. Hal R. Lebrecht, of Kansas City, for respondent.

BLAND, J.

This is a suit upon an account assigned to plaintiff by the Star Mill & Elevator Company in payment of a debt owed to plaintiff by said company. The case was referred to Hon. C. C. Crow, as referee, and he reported, recommending judgment for plaintiff. From an order sustaining, in part, the referee's findings, defendant, after taking the proper steps, appealed.

The Star Mill & Elevator Company was a corporation engaged in the buying and selling of wheat, with its place of business at Amarillo, Tex., and defendant was a buyer and exporter of wheat with his place of business in New Orleans, La., but whose shipping business, so far as this suit is concerned, was carried on in Texas City, Tex. From August 23, 1912, to April, 1913, defendant bought various lots of wheat from plaintiff's assignor. Contracts for such wheat were made as follows: If defendant wanted wheat it would wire to plaintiff's assignor at Amarillo, Tex., stating the amount and kind of wheat desired, the price to be paid, and a time of delivery of the wheat. Plaintiff's assignor would then wire defendant whether or not it would accept defendant's offer, and, in addition, would write defendant a letter of confirmation of the contract, and these letters of confirmation were regarded as the contracts. As these letters were all couched in practically the same language, we will set out but one of them:

                            "Star Mill & Elevator Co
                              "Confirmation of Sale
                                      "Amarillo, Tex., 12-13
                

"C. B. Fox, N. O.: We confirm sale to you to-day as follows: 40000 No. 2 Hd. Wheat. 91c. per bu. basic f. o. b. vessel delivered Texas City shipment with last ½ Jan. days. To be billed and routed. We do not accept any liability (save for our negligence) if grain arrives otherwise than billing instructions. T C grades and weights to govern. Our drafts with Bill of Lading attached to be paid by you on presentation. It is also agreed that this confirmation is a part of the contract, and its acceptance, without notifying us of error herein, is acknowledgment of contract as above.

"Yours very truly, Star Mill & Elevator Co.,

                                           "Per Deving
                

"On all purchases sold and delivered we reserve the right to route as suits us, except as otherwise agreed upon."

If the proposition to sell wheat first came from plaintiff's assignor, then the plan adopted was reversed. The evidence shows that plaintiff's assignor was to deliver the wheat f. o. b. defendant's vessels from the Texas City Terminal Elevator Company, and that defendant requested plaintiff to have all wheat in the said elevator company, that being the only public warehouse in Texas City. During the period of time above mentioned, plaintiff, under contracts as above set forth, shipped to the defendant nearly a million bushels of wheat, but only a portion of the same is in controversy in this suit. The words "Delivered Texas City shipment with last ½ Jan." meant that the wheat was to be in the Texas City Terminal Elevator Company's warehouse before the 16th of January, so that it might be loaded any time after that date and before the end of the month in a vessel, or, if shipment were specified to be made first half of the month, then the wheat was to be in said warehouse of said elevator company before the first of said month, so that it could be loaded not later than the fifteenth of the month.

Plaintiff sued to recover the amount of storage paid out by plaintiff's assignor to the Texas City Terminal Elevator Company for wheat shipped to the defendant, which defendant failed to take within the time specified in the contracts on account of not having vessels ready for loading, and also for interest on the contract price of the wheat that was stored in said warehouse during the time that the defendant was in default, as aforesaid, defendant not having paid for the wheat until the same was actually loaded into the vessels, some time after the time in which he was to take said wheat. In other words, plaintiff seeks to recover the "carrying charges" on the wheat, being the damages he claims his assignor suffered as a result of defendant's alleged breach of the contracts.

The first point made by appellant is that the court erred in permitting plaintiff to amend his petition after the referee had submitted his report to the court but before judgment. The petition sought to recover of defendant damages for his failure to take the wheat in time. At the trial it was shown that such damages were the storage charges on such wheat paid out by plaintiff, and the interest on the money plaintiff had tied up in wheat that was not so taken by defendant. However, plaintiff in his petition alleged that defendant owed plaintiff the latter amount as interest, and the court thought that the allegation should be that the money was owed as damages, and permitted plaintiff to amend his petition by so showing.

Matters of amendment of this kind are largely lodged in the discretion of the trial court, and, unless such discretion is abused, will not be interfered with on appeal. Carr v. Moss, 87 Mo. 447. We cannot see how defendant was prejudiced by the amendment made, and we do not believe that the trial judge abused the discretion vested in him in allowing such amendment.

The original petition filed in this cause contained 16 counts. Later, over the objection of the defendant, the court permitted plaintiff to amend his petition by merging into one count all of said 16 counts. Defendant claims this to have been error because he says the cause of action as amended was a departure from the cause of action stated in the original petition. We think that the amendment was not a departure, as the referee found that there was a running account between the parties. However, the defendant claims that each shipment was under a distinct and different contract, and that such contracts were unrelated to each other. The petition alleges that transactions such as those had between plaintiff's assignor and defendant were treated by them, and by grain merchants generally, as a running account, and the evidence strongly supports such allegation. However, during the course of the trial, plaintiff, by his counsel, stated that he withdrew all allegations of custom in the petition and stood on his written contracts, as pleaded therein. The plaintiff now claims that such withdrawal was only as to the custom of who should pay the exchange on certain drafts (a matter not before us, as the court struck out the allowance made by the referee on account of exchange). It is not quite clear what the plaintiff meant when he said that he withdrew all allegations in reference to custom. There was more than one custom alleged in the petition. However, in view of the uncertainty with reference to this matter, it was for the referee to say what was withdrawn by plaintiff. Aside from the allegation of such arrangement, the evidence is almost overwhelming to the effect that the transactions between plaintiff's assignor and defendant constituted a running account.

The testimony shows that, at a time several months after the commencement of these contracts between plaintiff's assignor and defendant, defendant had been in default on several occasions in taking his wheat, so on November 25, 1912, plaintiff's assignor wrote a letter to the defendant stating:

"* * * We have been carrying since Sept. 15th 20,000 bushels for you. Up until this very heavy amount of maize and kaffir it did not matter to us, but now it is inconvenient for us to have to carry anything after it is past due, and we would like to have you arrange to load out your November purchase by the last of the month, or give us permission to draw on you with warehouse receipts and inspection certificate attached for what you have not taken out on your contract."

Defendant replied to this letter stating that he would be glad to take over in the elevator (meaning the Texas City Terminal Elevator) whatever wheat might be due for November loading, but that he hoped to have vessels there ready to take the wheat on time. However, if he did not take the wheat on time, that "you can instruct your bank to draw on me with warehouse receipts, as suggested."

Two or three letters of like tenor were written by plaintiff's assignor to defendant subsequently to the one mentioned, and like answers were made by defendant. No drafts with warehouse receipts attached were ever sent by plaintiff's assignor to defendant, the former claiming it had only asked permission to draw such drafts in case it got pressed financially, but that it was a great deal of trouble to mix grain and inspect and grade it, so that it never took advantage of the permission given it by the defendant to draw such drafts before the vessels arrived and were loaded. Plaintiff further contends that there was no agreement that the defendant was to be given any notice of the presence of the grain in the Texas City Terminal Elevator other than that he received by the letters of confirmation.

Defendant claims that, by reason of said letters written by plaintiff's assignor to defendant requesting that plaintiff's assignors be allowed to draw drafts, the contracts, as made by said letters of confirmation, were changed, so that instead of defendant getting notice of the presence of the wheat in the Texas City Terminal Elevator, by reason of the time of delivery being specified in the letters of confirmation, he never received any notice whatever for the reason that such notice was...