Chapman v. Kansas City, Clinton and Springfield Railway Company
| Decision Date | 08 December 1898 |
| Citation | 48 S.W. 646,146 Mo. 481 |
| Parties | Chapman et al. v. Kansas City, Clinton and Springfield Railway Company, Appellant |
| Court | Missouri Supreme Court |
Appeal from Barton Circuit Court. -- Hon. D. P. Stratton, Judge.
Affirmed.
Wallace Pratt and Goode & Cravens for appellant.
(1) The court erred in leaving it to the jury to say whether defendant stopped and prevented the performance of the contract. Plaintiffs both testified they quit solely on account of the correspondence, beginning with the letter of July 6. It was for the court and not for the jury to say whether the effect of this correspondence was to stop them and prevent them from doing more. Enterprise Soap Works v. Sayers, 55 Mo.App. 15; Falls Wire Mfg. Co. v Broderick, 12 Mo.App. 378; Luckhart v. Ogden, 30 Cal. 547; Van Valkenburg v. Rogers, 18 Mich. 180; Lea v. Henry, 56 Iowa 662; Russell v Arthur, 17 S.C. 477; Raney v. Higby, 5 Wis. 62; 1 Thompson on Trials, sec. 1072; James & Sons v Marion, 69 Mo.App. 207. (2) It is a question of law and should be decided by the court and not by the jury, what acts amount to an abandonment or renunciation of a contract by a party. Henry v. Bassett, 75 Mo. 89; Dula v. Cowles, 75 Am. Dec. 463; Bufkin v. Baird, 73 N.C. 283; Thornoyburgh v. Mostin, 93 N.C. 262. (3) The court below misconstrued the contract which does not mean, as is declared in the second instruction, given at the request of the plaintiffs, that if plaintiffs furnished each month as many as ten thousand ties, consisting of one fourth seven-inch and three fourths eight-inch, then any excess of ties furnished during the month might contain more than twenty-five per cent of seven-inch. Chapman v. Railroad, 114 Mo. 542. Where there is doubt about the meaning of an agreement the courts will adopt as correct the one adopted by the parties themselves. Railroad v. Railroad, 131 Mo. 291; Ridge v. Transfer Co., 56 Mo.App. 133; Strauss Saddlery Co. v. Kingman, 42 Mo.App. 208; Storage Co. v. Street, 54 Ill.App. 569; Kinney v. Comm. of Hamilton Co., 50 Ohio Cir. Ct. R. 433; White v. Amsden, 30 A. 972; Webster v. Clark, 34 Fla. 637; Lyon v. Motley, 30 N.Y.S. 218. The circumstances attending the making of a contract will be considered to ascertain the meaning of it. Hanna v. South St. Joseph Land Co., 126 Mo. 1; Knapp v. Publishers George Knapp & Co., 127 Mo. 53; Brannock v. Elmore, 114 Mo. 55; Union Depot Co. v. Railroad, 113 Mo. 213; Fox v. Mission Free School, 120 Mo. 349. (4) Plaintiffs had failed to perform in two respects; the proportion of seven-inch face to eight-inch was running over twenty-five per cent and the ties were of unusually poor quality, unsalable, with an extraordinary percentage of culls and were driving buyers off the defendant's line of road and injuring its freight traffic. King Phillip Mills v. Slater, 12 R. I. 82; Moore v. Campbell, 12 N.E. 495; Roy v. Hooge, 13 P. 599; Spalding v. Rosa, 71 N.Y. 40; 3 Am. and Eng. Ency. of Law, 914; Chapman v. Railroad, 114 Mo. 542. (5) The letters and telegrams dated November 14 and November 16, 1887, are a complete defense to any claim for damages by plaintiffs after that date and demonstrate the error of the court in refusing the sixth instruction requested by the defendant. They also establish the fact that the plaintiffs quit work, not on account of any compulsion by the defendant, but because they were not satisfied with the inspections, for they say: "There is no misunderstanding, there are not five specification ties to the hundred in the State, and you and every other tie man knows it." 1 Beach on Contracts, sec. 415; Ripley v. McClure, 4 Exch. 344. (6) The contract of plaintiffs of January 10, 1888, by which they agreed to settle with defendant for ties as inspected by John I. Blair with the proof that Blair took all the specification ties that plaintiffs had on the right of way pursuant to that contract, is a complete bar to plaintiffs' action in this case. If they have any right of action it is on that contract and not the original one. Kimmerle v. Hoss, 53 Mich. 431; Goodrich v. Stoneley, 24 Conn. 613; Pulliam v. Taylor, 50 Miss. 251; Billings v. Vanderbeck, 23 Barb. 546; Whitney v. Cook, 53 Barb. 551. (7) The damages for future profits are remote and speculative and not such as can be recovered. Wilson v. Weil, 67 Mo. 399; Connoble v. Clark, 38 Mo.App. 476; Calloway Mining Co. v. Clark, 32 Mo. 305; Taylor v. Maguire, 12 Mo. 313.
George L. Mann, Mann & Talbutt and Thurman & Wray for respondents.
(1) When written correspondence is offered in evidence to prove a fact, it is always to be interpreted by a jury. Prim v. Haren, 27 Mo. 205; Wilson v. Board of Education, 63 Mo. 137; McNichol v. Express Co., 12 Mo.App. 401; Halpin v. Manny, 57 Mo.App. 59; Kelly v. Rowane, 33 Mo.App. 440; Kingsland v. Mfg. Co., 29 Mo.App. 526. When the facts are either disputed or different inferences may be fairly drawn from undisputed facts, the question should be submitted to a jury. Huhn v. Railroad, 92 Mo. 450; Manerman v. Siemerts, 71 Mo. 101; Nagel v. Railroad, 75 Mo. 653. (2) This is not a question of the abandonment of the contract by one of the parties thereto, but whether plaintiffs were prevented from performing on their part by the acts of defendant. But even where the question is one of abandonment or rescission the later authorities seem to be to the effect that it is a question for the jury. Chouteau v. Iron Works, 94 Mo. 388; Seligman v. Rogers, 113 Mo. 642; Bass v. Jacobs, 63 Mo.App. 393; Mantz v. McHinnie, 52 Mo.App. 136; Prim v. Haren, 27 Mo. 305. (3) It is the well settled law of this country as well as England that where a party is engaged in the performance of his contract and he is notified by the other party to the contract to proceed no further, he is justified in quitting and suing for a breach of the contract. Black River Lumber Co. v. Warner, 93 Mo. 389; Gabriel v. The Brick Co., 58 Mo.App. 520; Halpin v. Manny, 57 Mo. 29; Little v. Mercer, 9 Mo. 218; Bean v. Miller, 69 Mo. 384; Park v. Kitchen, 1 Mo.App. 358; Dobbins v. Edmonds, 18 Mo.App. 307; Canda v. Wick, 100 N.Y. 127; Hinckley v. Steel Co., 121 U.S. 246. After the notice to quit getting out ties July 6, 1887, plaintiffs had no right to continue to do so. Plaintiffs had a right to expect that defendants preferred to pay the damages for its breach of the contract and had elected so to do. Hosmer v. Wilson, 7 Mich. 293; Clark v. Marsiglia, 1 Denio, 317; Derby v. Johnson, 21 Vt. 21; Lord v. Thomas, 64 N.Y. 109. (4) Instruction number 2 given by the court correctly construes the contract. That instruction told the jury that plaintiffs must deliver 10,000 ties per month and that seventy-five per cent of them must be eight-inch ties and twenty-five per cent seven-inch ties. That of all the specification ties put on the road defendant was not required to take more than twenty-five per cent seven-inch face, but that it could not find against plaintiffs simply because of all the ties placed on the right of way by them there were more seven-inch ties than defendant could be required to take under the contract. The trial court's construction of this contract is not only supported by the plain meaning of the language of the contract, but in addition is supported by the construction put upon it by the parties themselves, as shown by their acts. (5) There was no "arrangement" made to "attract" tie buyers to its (defendant's) line. (6) The contention that the letters of November 14 and 16, 1887, show conclusively that defendant was anxious to get ties of good quality from plaintiffs -- that plaintiffs knew it, is not supported by the record. (7) The contract with plaintiffs by which they were to settle with defendant for all ties which John I. Blair accepted on the basis of his (Blair's) inspection, has nothing to do with defendant's liability for violating its contract by preventing plaintiffs from carrying out their contract. It nowhere appears that plaintiffs agreed to release defendant from its liability by reason of such contract. There was not even an "offer" to prove any such fact. (8) It is now the settled law of this case that the inspection is conclusive against both parties until set aside for fraud. Howard Co. v. Baker, 119 Mo. 397; Williams v. Railroad, 112 Mo. 463. (9) The criticism of defendant's counsel on the first instruction referring especially to the measure of damages is extremely technical and wholly without merit. The ties could not have been inspected if they had not been gotten out; and when gotten out according to the contract the law presumes that defendant's inspectors would have accepted them. The defendant having prevented plaintiffs from getting out the ties, an inspection was not necessary to entitle plaintiffs to recover. Black River Lumber Co. v. Warner, 93 Mo. 383. (10) The damages resulting from the loss of profits on a contract where the party performing is prevented from completing the performance by the other party are not remote or speculative, and the measure of damages is the difference between the contract price and the cost of getting out and delivering the ties on defendant's right of way. Black River Lumber Co. v. Warner, 93 Mo. 383; Lewis v. Atlas Ins. Co., 61 Mo. 534; Kansas City Hotel Co. v. Sauer, 65 Mo. 289; Park v. Kitchen, 1 Mo.App. 356; West v. Moser, 49 Mo.App. 213; 1 Sedg. on Damages 473-4 and note a.; Hinckby v. Pittsburgh B. S. Co., 121 U.S. 246; People v. Stephens, 71 N.Y. 558.
This case was here on a former appeal by defendant, when it was reversed and remanded for a new trial; the opinion on the first appeal is reported in 114 Mo. 542, 21 S.W. 858. Another trial was had before a jury, resulting in a verdict of $ 5,000 for the plaintiff. After an ineffectual motion for a new...
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