Central Flour Mills Co. v. Gateway Milling Co.

• Citation: 213 S.W. 131
• Decision Date: 26 May 1919
• Docket Number: No. 13273.,13273.
• Parties: CENTRAL FLOUR MILLS CO. v. GATEWAY MILLING CO.
• Court: Court of Appeal of Missouri (US)

213 S.W. 131

CENTRAL FLOUR MILLS CO. v. GATEWAY MILLING CO.

No. 13273.

Kansas City Court of Appeals. Missouri.

May 26, 1919.

Appeal from Circuit Court, Jackson County; Thomas B. Buckner, Judge.

"Not to be officially published."

Action by the Central Flour Mills Company against the Gateway Milling Company. Judgment for plaintiff, and defendant appeals. Affirmed on condition that plaintiff enter remittitur; otherwise reversed and remanded.

Haff, Meservey, German & Michaels, of Kansas City, for appellant.

Marley & Reed and James A. Taylor, all of Kansas City, for respondent.

TRIMBLE, J.

Plaintiff's suit is for breach of contract to sell and deliver flour. The petition is in two counts. The first declares upon a written contract made October 9, 1916, wherein defendant agreed to sell and deliver to plaintiff 500 barrels of 95 per cent. hard wheat Kansas flour at $6.85 per barrel in secondhand jutes, sacks returnable at 15 cents per barrel. Delivery was to be made in October, but it was alleged that the time was extended by mutual agreement till January 4, 1917, when defendant delivered 250 barrels, and promised to deliver the rest within a week, but on January 9, 1917, defendant repudiated said contract and refused to deliver the balance of the flour due on the same; that on that date the market price of that kind of flour was $8.83 per barrel, and plaintiff suffered a loss of the difference between the market and contract price, to wit, $1.98 per barrel, or, in all, $495, for which judgment was prayed.

The second count declared upon a written contract made October 10, 1916, wherein defendant promised to sell and deliver to plaintiff 1,000 barrels of 95 per cent. hard wheat Kansas flour at $6.90 per barrel in new plain jutes. Delivery was to be made in November, but it was alleged that by mutual agreement the time was extended from time to time until December 26th, when defendant delivered 250 barrels of flour on said contract, and promised to deliver the balance within a week, and that on December 28th defendant delivered 250 barrels, and delivery of the balance was by mutual agreement extended to January 9, 1917, on which date defendant refused to deliver more. It was further alleged " that on said date the market price of such flour was $8.83 per barrel, and that plaintiff thereby suffered a loss of the difference between the market and contract price, to wit, $1.93 per barrel on 500 barrels, or, in all, $965, for which judgment was asked.

The answer to the first count admitted the contract declared on therein and alleged that defendant delivered 250 barrels and offered to deliver the other 250 barrels, and to stand a loss of 35 cents per barrel, the difference between the contract and market price on the day the offer was made, but that plaintiff refused to accept said offer.

The answer to the second count admitted the contract sued on therein, and alleged that on December 26th defendant delivered 250 barrels, and on December 28th delivered 250 barrels more, and offered to deliver the remaining 500 barrels and to stand a loss of 30 cents per barrel, which was the difference between the contract and market price on the day the offer was made, but that plaintiff refused to accept said offer.

In a trial before a jury and at the close of all the evidence the court, on its own motion, instructed the jury to return a verdict for plaintiff on each count. In said instruction the jury were further told that, in estimating the plaintiff's damages, they should allow the difference between the contract and market price on the 9th day of January, 1917, or, in other words, that the contracts were breached on that date. The court in said instruction further submitted to the jury the question whether the price of the sacks was included in the purchase, and told them that, if the sacks were not so included in the purchase, then the reasonable value of the sacks should be deducted from the amount of damages ascertained as above provided, but, if the sacks were included, then no deductions should be made.

Under said instruction the jury returned a verdict for the full amount sued for in each count. The defendant appealed.

The contracts being in writing and their execution admitted, the burden was on defendant to establish its affirmative defense. Where the answer admits plaintiff's case and sets up new matter of defense, and the evidence offered in support thereof does not make out a prima facie defense, a peremptory instruction is proper. Wolff v. Campbell, 110 Mo. 114, 19 S. W. 622; Vincent v. Means, 184 Mo. 327, 341, 82 S. W. 96. This rule is well settled and, as applied to this case, the peremptory instruction to find for plaintiff can be justified only in the event there is no substantial evidence that defendant delivered, or offered to deliver, the flour necessary to complete the contract calling for it. And, in determining this question defendant's evidence must be accepted as true. The question then is, taking defendant's evidence at par and accepting it as true: Does it show such a tender or offer to deliver as will relieve defendant from further performance?

It is admitted that under the contracts the delivery was to be f. o. b. cars at Kansas City. Thomson was president of the plaintiff company, and Kresky president of the defendant. Bishop was the defendant's flour salesman, and had entire control of the flour sales, and it was through him that the written contracts and deliveries thereunder were made.

On December 16th defendant tendered two cars of 250 barrels each at $6.90 per barrel, but the plaintiff, after having it officially inspected and tested, rejected the cars on the ground that the flour was unsound. Manifestly this tender was made to apply on the second contract, as it was at the price called for therein. The flour was rejected on the 18th of December. Defendant does not now concede the flour was unsound, but it conclusively appears from the testimony on both sides that defendant acquiesced in the rejection; for, promising to get sound flour, defendant undertook to get other flour in lieu thereof and made no claim of standing upon the delivery of the two rejected cars as a part performance of the contract. Defendant's president, Kresky, testified that he offered plaintiff's president, Thomson, sound flour in lieu of that which had been rejected, and says that on December 21st, in the presence of Thomson, who had come to his office to see about obtaining delivery, he called up certain flour mills in Kansas by telephone and obtained a 30-minute option on 1,000 barrels of flour at $7.20 per barrel; that he thereupon turned to Thomson and offered this flour on the contract, telling him the mills guaranteed it to be as called for in the contract, but that it must be accepted within 30 minutes, as that was the limit they had; that Thomson wanted a sample for inspection and testing, and was told they would get it as soon as they could, but asked him what was the use of a sample when the flour was guaranteed; that Thomson said he would let defendant know in a few minutes, and went out but did not come back; that the flour market was wild and fluctuating, and flour went up that day and defendant could not buy it for $7.20. Kresky claims that in this Conversation he told Thomson that this offer of defendant's to buy 1,000 barrels of flour to apply on the contract was a tender, and was all they could do. When asked to tell what was said he testified that he told Thomson he must let them know within the 30 minutes whether he would accept the flour defendant had obtained the option on "because that is the last chance we will have to fill the balance of the contract." Later on he said he told him it "was probably our last chance to fill this contract"; that prior to and on this date, December 21st, it had contracted for two cars of 250 barrels each, but which was difficult for the mills to get, and the two cars had not yet been shipped; that, with this 500 barrels under contract and to come and the 1,000 barrels it was proposing to buy on the 30-minute option, the entire contract would be filled. And defendant now claims that this offer to purchase 1,000 barrels and turn it over to plaintiff was a tender the refusal of which...