Brewer v. Lepman & Heggie
| Citation | 106 S.W. 1107,127 Mo.App. 693 |
| Parties | J. E. BREWER, Appellant, v. LEPMAN & HEGGIE, Respondents |
| Decision Date | 06 January 1908 |
| Court | Court of Appeals of Kansas |
Appeal from Jackson Circuit Court.--Hon. John G. Park, Judge.
AFFIRMED.
Judgment affirmed.
Meservey & German for appellants.
(1) No error was committed in the giving of instruction 1 on behalf of plaintiffs. Trounstine v. Fellers, 35 Kan. 447; Clark on Contracts, 40, 41, 42; Maclay v. Harvey, 90 Ill. 525; Palmer v. Insurance Co., 84 N. Y. Ct. App 63 (39 Sickels); 1 Parsons on Contracts (9 ed.), pp. 518-524 (bottom paging); Eagle Mill Co. v. Caven, 76 Mo.App 458; Bruner et al. v. Wheaton, 46 Mo. 363; Guest v. Railroad, 77 Mo.App. 258; Lancaster v Elliott, 42 Mo.App. 503; Horton v. Insurance Co., 151 Mo. 619. (2) No error was committed in the giving of instruction 7, at the request of plaintiffs. Blaydes v. Adams, 35 Mo.App. 526; Feary v. O'Neill, 149 Mo. 467; Copland v. Railroad, 175 Mo. 650; Liese v. Meyer, 143 Mo. 547; Christianson v. McDermott Estate, 123 Mo.App. 448; Baker v. City of Independence, 106 Mo.App. 507.
M. B. Aaron for respondents.
(1) The court should have sustained the demurrer to the evidence. Lindley on Partnership (2 Am. Ed.), 42; Hahlo v. Mayer, 102 Mo. 93. (2) Instruction 1 is erroneous. Newberry v. Durand, 87 Mo.App. 290; 9 Cyc., 785; James & Sons v. Fruit Bottle & Jar Co., 69 Mo.App. 207; Bank v. Miller, 106 N.C. 347. (3) Instruction 7 is erroneous. Delaney v. Refinery Co., 42 Mo.App. 659; Ellicott v. Turner, 4 Md. 476; Quirk v. Elevator Co., 126 Mo. 279. (4) The law presumes that the action of the trial court in granting a new trial herein was correct, that any error occurring in the trial was prejudicial to the defendant, and will sustain the action of the trial court, if it can be so done, upon any ground alleged in the motion for a new trial. Kuenzel v. Stevens, 155 Mo. 280; Hoepper v. Hotel Co., 142 Mo. 378; Ittner v. Hughes, 133 Mo. 680.
--This action is for damages for an alleged breach of contract. The judgment in the trial court was for the plaintiff. The defendants filed a motion for a new trial which was sustained and thereupon plaintiff appealed from that order.
It appears that defendants are dealers in eggs at Chicago, Illinois, and that plaintiff is such dealer at Abilene, Kansas. That on February 7, 1906, defendants wishing to purchase a carload of fresh eggs at eighteen cents per dozen, telegraphed on that day to plaintiff as follows: "Offer eighteen delivered car fresh eggs ship today prompt wire acceptance." On the same day plaintiff telegraphed from Abilene his acceptance of the offer in these words: "Your offer eighteen accepted for today's car." On the same day defendants telegraphed back to plaintiff that his acceptance was too late and offering to take them at a discount. The eggs had been shipped when that telegram was received and plaintiff refusing the offer for discount defendants refused to accept them. The action is for the difference in value of the eggs when they arrived at Chicago and the contract price, which is alleged to be $ 425.
The evidence disclosed that defendants' telegram offering eighteen cents and requiring prompt acceptance, was delivered at plaintiff's place of business at 10:05 o'clock a. m., though not received by plaintiff personally until 11:30 as he was engaged outside of his office. At about 12 plaintiff wrote the acceptance above set out and sent it to the telegraph office, but the operator had gone to dinner. There was but the one office in Abilene and plaintiff sent the dispatch again, shortly after one o'clock. The operator had not yet returned and plaintiff then went to his dinner and on his return, after two o'clock, sent it again. The operator's record at Abilene shows that it was received by her at 2:45 and it was received by defendants at Chicago at 3:31.
The trial court instructed the jury that the words of the telegram requiring "prompt wire acceptance" meant that plaintiff was to telegraph acceptance as soon as he reasonably could under the circumstances in evidence, a synopsis of which we have stated. In other words the jury were told that the words meant a reasonable time. In our opinion this was an erroneous construction of the telegram and the trial court was right in so considering. The plaintiff was not only required to telegraph his acceptance, but he was required to do so promptly. The word "promptly" must have been used for some effective purpose, and courts are not at liberty to substitute some other time than that named by the offer. After an investigation of the subject in the case of Metropolitan Land Co. v. Manning, 98 Mo.App. 248, 261, 71 S.W. 696, we held that the word "promptly" meant more expedition than reasonable time. A man has a reasonable time in which to do a thing, where no time is prescribed, without the aid of the word "promptly." So it ought to be clear that the use of that word should entitle him to something more than he would have if he had not made use of it. In James v. Fruit Jar Co., 69 Mo.App. 207, 218, the words of a telegram conveying an offer were "wire instantly," and this court held, in an opinion by Judge SMITH, that such expression did not give a reasonable time for answering, and that the telegram, though received at 10 p. m., should have been answered that night. In Bank v. Miller, 106 N.C. 347, 11 S.E. 321, a proposition was made by telegram which added "Must have reply early tomorrow," and it was held that there was no contract unless the reply was so made and that a reply the following evening would not do. In Metropolitan Land Co. v. Manning, supra, will be found collected a number of authorities in further elucidation of this subject, which we believe, when taken in connection with those herein cited, abundantly sustain the court in regarding the instruction as erroneous.
Defendants' propo...
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