Black River Lumber Co. v. Warner
| Citation | 6 S.W. 210,93 Mo. 374 |
| Parties | Black River Lumber Company v. Warner, Appellant |
| Decision Date | 19 December 1887 |
| Court | United States State Supreme Court of Missouri |
Appeal from St. Louis City Circuit Court. -- Hon. Shepard Barclay Judge.
Reversed and remanded.
E. J White for appellant.
(1) [a] As to first count, the question of agency or purchase should have been submitted to the jury. Clarke v. Hammerle, 27 Mo. 55; Mead v. Brotherton, 30 Mo. 201; Sawyer v. Railroad, 37 Mo. 240; Paine v Kohl, 14 Neb. 580; Moss v. Green, 41 Mo. 390; Philibert v. Burber, 4 Mo.App. 470. (b) An instruction which assumes the existence of certain facts, as well as an instruction which assumes the existence of certain evidence to establish a certain fact, when no such evidence was introduced, is erroneous. Ewing v. Goss, 41 Mo. 492; Chouteau v. Seavey, 8 Mo. 733; Gersen v. Railroad, 60 Mo. 405; Insurance Co. v. St. Mary's Seminary, 52 Mo. 480; Peck v. Richey, 66 Mo. 114; Mascheck v. Railroad, 3 Mo.App. 600; Turner v. Railroad, 51 Mo. 50; Lester v. Railroad, 60 Mo. 265; Bank v. Armstrong, 62 Mo. 59. (2) [a] As to the second count, defendants, if liable at all, were liable only for the difference between the contract price and the market value of the lumber of contract dimensions. Whittman v. Coats, 14 Mo. 9; Northrup v. Cook et al., 39 Mo. 209; Koeltz v. Bloeckman, 46 Mo. 320; Chapman v. Ingram, 30 Wis. 290; Rickey v. Tenbroek, 63 Mo. 563; Masterson v. Mayor, 7 Hill, 62; Rider v. Kelley, 32 Vt. 268. (b) In the sale of property not in esse, the article must not only be made and offered to the vendee, but he must accept it, or it must be set apart for him, by his consent, before the title to it will rest in him. Rider v. Kelley, 32 Vt. 268; England v. Mortland, 3 Mo.App. 490; Hale v. Huntley, 21 Vt. 147; Jones v. Marsh, 22 Vt. 144; Gilman v. Hill, 36 N.H. 311; Comfort v. Kirsted, 32 Barb. 472; Johnson v. Hunt, 11 Wend. 137; Mixer v. Howarth, 21 Pick. 205; Ober v. Carson, 62 Mo. 209-213. (c) The court should have permitted the jury to determine as to whose duty it was, under the evidence, to have the lumber inspected. Edwards v. Smith, 63 Mo. 119; Amonett v. Montague, 63 Mo. 201; Insurance Co. v. St. Mary's Seminary, 52 Mo. 480; Singleton v. Insurance Co., 66 Mo. 63; Moss v. Green, 41 Mo. 390; Rollins v. Claybrook, 22 Mo. 406; Philibert v. Burber, 4 Mo.App. 470; Blair v. Corby, 37 Mo. 313; Hueske v. Bruessard, 55 Tex. 201; Mason v. Ryns, 26 Kas. 464; St. Louis Gas Light Co. v. City of St. Louis, 46 Mo. 121. (d) In refusing to permit the inspector sent to the mill to inspect the lumber, and in afterwards refusing to ship the lumber to St. Louis, when asked to do so, plaintiff was itself guilty of a breach of its contract, and became liable to defendants for their commissions on the whole bill. Denny v. Kile, 16 Mo. 455; Howland v. Leach, 16 Pick. 155. (e) Where the acts of the vendor himself are inconsistent with a sale and delivery, he cannot claim that the property has been sold and delivered. England v. Mortland, 3 Mo.App. 490. (3) [a] As to third count, if defendants were liable, in any event, on the third count of plaintiff's petition, they were liable only for the difference between the contract price and the market value of the lumber upon the market in St. Louis, where it was to be delivered, at the time of delivery. Masterson v. Mayor, 7 Hill, 62; Whitman v. Coats, 14 Mo. 9; Northrup v. Cook, 39 Mo. 208; McKing v. Dunlap, 5 N.Y. 537; Koeltz v. Bloeckman, 46 Mo. 320; Brown v. Nash, 9 Barn. & Cress. 145; Chapman v. Ingram, 30 Wis. 290; Shepherd v. Hampton, 3 Wheat. 200; Rickey v. Tenbroek, 63 Mo. 563; Day v. Dix, 9 Wend. 129; Allen v. Jarvis, 20 Conn. 48; Davis v. Shield, 24 Wend. 322; Rhodes v. Baird, 16 Ohio St. 580, 581; Clark v. Pinney, 9 Cow. 681; 1 Sedg. on Dam. 554, and note a, p. 586. (b) A simple breach of the contract on the part of defendant would not authorize the plaintiff to stop work and recover for the unperformed work. Such a breach might justify him in abandoning the work, and entitle him to recover for the work already done, but for a mere breach of the contract on the part of his adversaries he cannot stop the work and recover for alleged profits on unperformed work. Park v. Kitchen, 1 Mo.App. 357; Fitzgerald v. Howard, 50 Mo. 524.
T. K. Skinker for respondent.
(1) The trial court did not err in refusing to leave it to the jury to determine (a) whether defendants were plaintiff's agents to sell the lumber to the Clark Company; or (b) upon whom the duty of inspection devolved. 58 Mo. 290; 90 Mo. 639-640. (2) The plaintiff was properly allowed to recover, on the second count, the full price, at contract rates, of the lumber sawed according to the contract but not delivered, less the cost of delivery. Sedg. on Meas. of Dam. [5 Ed.] 333; 3 Pars. on Cont. [5 Ed.] *208; 2 Benj. on Sales [Corbin's Ed. 1883] sec. 1125, note 5; Benj. on Sales [Bennett's Ed. 1881] sec. 763, note 6; Graham v. Jackson, 14 East, 498; Dobbins v. Edmonds, 18 Mo.App. 307; Ballentine v. Robinson, 46 Pa. St. 177; Shawhan v. Van Nest, 25 Ohio St. 490; Smith v. Wheeler, 7 Oregon, 49; Bement v. Smith, 15 Wend. 493; Bagley v. Findlay, 82 Ill. 524; Bell v. Offutt, 10 Bush, 632, 639; Cook v. Brandeis, 3 Met. (Ky.) 557. (3) The failure of the defendants to have the sawed lumber inspected at the mill, and their absolute refusal at last to take any more lumber at all, dispensed with the necessity of making a tender at St. Louis, and authorized immediate suit as if tender had been made. Westlake v. The City of St. Louis, 77 Mo. 47-51; Deichmann v. Deichmann, 49 Mo. 107; Mastin v. Grimes, 87 Mo. 478; Canda v. Wick, 100 N.Y. 127; Ripley v. McLure, 18 L. J. Ex. 419; Goodwin v. Holbrook, 4 Wend. 377; Pearson v. Mason, 120 Mass. 53; Hayden v. Demets, 2 Jones & Sp. 344; Pittsburgh Bessemer S. R. Co. v. Hinckley, 17 F. 584; 121 U.S. 264. (4) The fact that there is among the sawed lumber some which does not comply with the contract (called culls) does not invalidate plaintiff's offer to deliver, or affect his right of recovery. (a) Because defendants' refusal to receive was not put on this ground. Wheelan v. Reilly, 61 Mo. 568; Adams v. Helm, 55 Mo. 471; Stokes v. Recknagel, 6 Jones & Sp. 368; Graham v. Jackson, 14 East, 498; Hayden v. Demets, 53 N.Y. 426. (b) Because under the contract, as interpreted by the acts of the parties, plaintiff was not bound to remove the culls before demanding inspection. Jones v. Delassus, 84 Mo. 541-545; Patterson v. Camden, 25 Mo. 13; Crawford v. Earl, 38 Wis. 312; Hunter v. Wetsell, 84 N.Y. 554-555. (c) Because the quantity is inconsiderable. Tenny v. Mulvaney, 8 Oregon 135; Cullen v. Bimm, 37 Ohio St. 236; Sands v. Taylor, 5 Johns. 395-398. (5) The plaintiff was properly allowed to recover, on the third count, for defendants' refusal to permit it to complete the contract, the profits which it would have made had it been permitted to saw and deliver the remainder of the lumber. Benj. on Sales [Bennett's Ed.] sec. 760; Eckenrode v. Chemical Co., 55 Md. 51; Hale v. Frout, 35 Cal. 229; Pittsburgh Bessemer Steel Rail Co. v. Hinckley, 17 F. 584; 121 U.S. 264; Atkinson v. Morse, 5 West. Rep. 917; Salvo v. Duncan, 49 Wis. 151. (6) After positive refusal of defendants to take any more lumber, plaintiff had no right to proceed with the contract; he was bound to stop work and look to the defendants for damages. Clark v. Marsiglia, 1 Denio, 317. Their refusal is, in the eye of the law, a prevention by them of the further execution of the contract. Cort v. Railroad, 17 Ad. & Ell. [N. S.] 127-143; Black v. Woodrow, 39 Md. 194-216; Textor v. Hutchings, 65 Md. 150; Derby v. Johnson, 21 Vt. 17; Railroad v. Van Dusen, 29 Mich. 431-444. (7) The plaintiff was properly allowed to recover on the first count for the small quantity of lumber, not of contract sizes, which was received and used by defendants. Woods v. Stephens, 46 Mo. 555; Helm v. Wilson, 4 Mo. 44; Crawford v. Elliott, 78 Mo. 497; Pacific Mail S. S. Co. v. United States, 18 Court of Claims, 30.
This suit is founded upon an alleged contract between the plaintiff, a corporation engaged in manufacturing lumber, and the defendants, Warner and Pearman, whereby it is alleged the plaintiff was to manufacture and deliver to the defendants between four and five hundred thousand feet of lumber. The suit is in three counts. The first seeks to recover a balance due on lumber delivered; the second declares for the contract price of another portion, which was sawed but not received by the defendants; and the third seeks to recover, by way of damages, the profits which would have accrued to the plaintiff, but for the refusal of the defendants to go on with the contract. The defendants answer, among other things, that they did not purchase the lumber; that they were but commission merchants, and as such sold the lumber for plaintiffs, and as their agents, for an agreed compensation, to the E. C. Clark Lumber and Iron Company, which company purchased the same for the Union Pacific Railroad Company. There was a verdict for the plaintiff on each of the three counts, and the defendant, Warner, appealed.
The complaints are, that the court erred in refusing to submit the question of agency to the jury, and in the instructions given upon the measure of damages. Mr. Daniels was the managing officer of the plaintiff, at its office in St Louis, and Mr. Badgley had control of its affairs at the mill, which was in Butler county, some two hundred miles from St. Louis; and the defendants were lumber commission merchants in St. Louis. Daniels testified that, in December, 1881, he saw the defendants and wanted to sell them lumber to be thereafter sawed; that he told them his company had no agents and sold for cash only; that he made prices with defendants for a...
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