Champion Coated Paper Co. v. Shilkee

• Decision Date: 31 December 1921
• Docket Number: No. 22101.,22101.
• Citation: 237 S.W. 109
• Parties: CHAMPION COATED PAPER CO. v. SHILKEE.
• Court: Missouri Supreme Court

237 S.W. 109

CHAMPION COATED PAPER CO. v. SHILKEE.

No. 22101.

Supreme Court of Missouri, Division No. 2.

December 31, 1921.

Respondent's Motion to Modify Opinion Overruled February 18, 1922.

Appeal from St. Louis Circuit Court; G. A. Wurdeman, Judge.

Action by the Champion Coated Paper Company against Edward G. Shilkee. Judgment for the plaintiff, and defendant appeals. Reversed and remanded for a new trial.

This is a suit for breach of contract resulting in a judgment against appellant (defendant below) in the sum of $9,825.

Pleadings.

The petition charges that on the 1st day of October, 1917, the plaintiff (respondent here) entered into a contract with defendant (appellant here) whereby it was agreed by appellant to sell and by respondent to buy "50 cars all Arkansas No. 3 short leaf yellow pine" at the agreed price of $22.50 per thousand feet, delivered at Hamilton, Ohio, in shipments of not to exceed two cars a week; all to be delivered by April 1, 1918, and that on April 18, 1918, at the request of defendant, the plaintiff consented that said contract might be completed not later than June 15, 1918.

Plaintiff then averred its willingness and ability to carry out its part of the agreement; asserted that it had demanded performance on the part of defendant, and alleged failure on the part of defendant to comply with his part of the contract, and that on June 29, 1918, defendant definitely notified plaintiff that he would be unable to fill such contract, thereby damaging plaintiff in the sum of $10,000, for which it asked judgment. Defendant's answer, after denying generally the allegations of the petition, set up the following affirmative defense: That the contract sued on was contingent upon strikes, accidents, delays of carrier, or other causes beyond the control of the defendant, and that he attempted to comply with his agreement, but was prevented from doing so by causes beyond his control. That there was a custom in the lumber trade, in which both plaintiff and defendant were engaged, to the effect that all agreements, contracts, and orders were accepted on condition that they were contingent upon strikes, accidents, delays of carrier, or other causes beyond the control of the contracting parties.

Defendant then alleged that at all of the times mentioned in plaintiff's petition the government of the United States of America and the governments of Germany and Austria-Hungary were engaged in war, and that by reason of a state of war the government of the United States of America required the delivery of all of the lumber contracted for by plaintiff, and required the use of all of the transportation facilities to transport said lumber to its cantonments, erected for the purpose of prosecuting said war, and that by reason thereof defendant could not get the material covered by his contract, and neither could he obtain transportation facilities to deliver under said contract, and that such causes were beyond his control.

Defendant then asserted that a new contract was entered into on the 1st day of April, 1918, by the terms of which he was to deliver said material, conditioned upon transportation facilities, on or before June 15, 1918, but on account of a government embargo on shipping it was not possible for him to fill said orders. The reply was a general denial.

The Facts.

Both the pleadings and the testimony showed that the original contract was made between respondent and a partnership known as the Shilkee-Whalen Lumber Company; that the negotiations were conducted by the appellant for such partnership; that he was the only surviving member of said partnership; and that the suit proceeded against him alone for the alleged breach of contract. The testimony tended to support the allegations of respondent's petition, and that on the 29th day of June, 1918, as alleged by respondent, appellant avowed his inability to comply with the terms of said contract by the following letter addressed to respondent:

"Shilkee-Whalen Lumber Co.

                               "St. Louis, Mo., June 29, 1918
                

"Mr. W. D. Randall, Secy. & Treas. Champion Coated Paper Co., Hamilton, Ohio—Dear Sir: Replying to your letter of June 25th regarding your order 12932, beg to advise that we will be unable to fill this order.

"We have not been able to make a cent of money in the last eight months and the Shilkee-Whalen Lumber Co. is going out of existence. In fact, we are vacating our office today. On account of the government taking over so much yellow pine all the mills hand out on old orders is promises and a person cannot realize on promises. The recent action that the government has taken, setting a price on all lumber, puts the wholesaler out of business entirely and the writer will take a position with one of the mills in the South. It has been an uphill proposition with us ever since the first of the year and our business now is wound up entirely.

"I am indeed very sorry to be compelled to write this letter, but you can rest assured that if I can ship you any lumber under the market price, I will do so, that is from the mill that I am figuring on going with.

                    "Yours very truly
                          "Shilkee-Whalen Lumber Co
                "ECS/LP                 Per E. G. Shilkee."
                

There was testimony to show the difference between the contract price and the market price, as of June 15, 1918, the last day on which appellant should have made delivery. Without objection respondent read in evidence a letter from appellant, dated July 10, 1918, following an interview he had had with respondent's lawyer, and in that letter he begged respondent to desist from its then threatened litigation, and then, over the strenuous objections of appellant respondent, read in evidence its Exhibit X, being a letter dated July 13, 1918, as follows:

                                               "July 13, 1918
                

"Shilkee-Whalen Lumber Co., 2002 Railway Exchange Bldg., St. Louis, Mo. Mr. E. G. Shilkee—Dear Sir: Your favor of the 10th inst., is at hand, and the remarks relative to action we are bringing against your company, noted with interest.

"This order, you will recall, was placed with you ...