Chouteau v. Jupiter Iron Works

• Decision Date: 31 October 1884
• Citation: 83 Mo. 73
• Parties: CHOUTEAU, Appellant, v. THE JUPITER IRON WORKS.
• Court: Missouri Supreme Court

83 Mo. 73

CHOUTEAU, Appellant,

v.THE JUPITER IRON WORKS.

Supreme Court of Missouri.

October Term, 1884.

Appeal from St. Louis Court of Appeals.

REVERSED.

Hermann & Reyburn and George A. Madill for appellant.

(1) It is the duty of the court to construe a contract; to declare its meaning and effect to the jury. San Antonio v. Lewis, 9 Tex. 69; Goddard v. Foster, 17 Wall. 142; Smith v. Faulkner, 12 Gray 251; Thomas v. Thomas, 15 B. Monroe 178; Whittelsy v. Kellogg, 28 Mo. 404. (2) It is the duty of the court to construe an ambiguous contract in the light of the surrounding circumstances. M. & M. R. Co. v. Jurey, 111 U. S. 592; Barreda v. Silsbee, 21 How. (U. S.) 146; Nash v. Towne, 5 Wall. 689; Canal Co. v. Hill, 15 Wall. 94. (3) It is the duty of the court, when requested to do so, to point out to the jury what acts constitute, or have a tendency to prove, an abandonment of a contract, or a waiver of breach of condition, or a waiver of forfeiture. And it is the province of the jury to ascertain whether the acts, so pointed out to them by the court, do, or do not, exist. And it is error to leave it to the jury to select what facts do, and what do not have, in law, such tendency. Henry v. Bassett, 75 Mo. 95; Riggins v. Mo. River R. R. Co., 73 Mo. 598; Fine v. Rogers, 15 Mo. 318; Blood v. Enos, 12 Vermont 629; Devitt v. Pacific R. R. Co., 50 Mo. 304. (4) A party who attempts to establish the abandonment of a written executory contract, by the conduct of the parties thereto, must furnish proof of acts, clear and unequivocal in their character, tending to show such abandonment; not those which are ambiguous in their nature. Fine v. Rogers, 15 Mo. 318; Chamber of Commerce v. Sollitt, 43 Ill. 519; Quincy v. Felton, 5 Maine 277; Williams v. Champion, 6 Ohio 170. (5) Where, in a written executory agreement, a rescission of the contracts is sought to be established by the acts of the parties, the fact of the written agreement not having been surrendered or cancelled on its face, is a strong circumstance against the claim of rescission; a circumstance to be considered by the triers of the fact, in determining that issue; and it is the duty of the court to so declare the law. Pratt v. Morrow, 45 Mo. 408. (6) Where a contract in writing has been, by consent, rescinded by parol, it may subsequently, by consent, be revived into full vigor. Such revivifying may be proved by the acts and declarations of the parties without an express agreement. Graham v. Hollaway, 44 Ill. 292; Cuff v. Penn, 1 Maule & Sell. 21; Richardson v. Hooper, 13 Pick. 446.

Thomas J. Portis for respondent.

(1) The contract sued on was only conditional. It was not to be in force until the furnace was lighted by defendant, and that was never done, and hence the contract never went into effect. It was optional with the defendant to light the furnace, and having determined not to do so, plaintiff cannot complain. Scharringhausen v. Luebsen, 52 Mo. 339; Riggins v. Ry. Co., 73 Mo. 606; Brown v. Slee, 103 U. S. 828; 1 Wharton on Contracts, § 558. (2) The contract in this case must be construed by its own terms. Parol testimony cannot be considered in order to explain or construe it. 2 Kent's Com., 556; Lash v. Parlin, 78 Mo. 397; Huse v. McQuade, 52 Mo. 388; O'Neil v. Crain, 67 Mo. 251. (3) Plaintiff, if he intended to insist on having the furnace started, should, within a reasonable time, have demanded that it be done. 1 Wharton on Contracts, § 602; Hubbard v. Burton, 75 Mo. 65. (4) The questions of abandonment and rescission were for the court to determine. Henry v. Bassett, 75 Mo. 95; Pratt v. Morrow, 45 Mo. 404. Very slight circumstances are sufficient to show the assent of a party thereto when it is obviously for his interest that a contract should be terminated. Fine v. Rogers, 15 Mo. 318.

HENRY, J.

This action is for the recovery of damages for breach of the following written agreement, between plaintiff and defendant:

“Agreement made and entered into this 27th day of March, 1877, by and between Pierre Chouteau, of the City of St. Louis, party of the first part, and the Jupiter Iron Company, of the City of St. Louis, a corporation duly organized under the laws of the state of Missouri, party of the second part. Witnesseth: The party of the first part agrees, for and in consideration of the sum of one dollar, in hand paid, and the further sum of money hereinafter named, to enter into the following contract with the party of the second part: The party of the first part hereby agrees to take charge of the blast furnace of the said party of the second part, and to operate it to the best of his ability, and to furnish all labor, skilled and otherwise, including licensed engineers to run the machinery and boilers belonging to the blast furnace; to unload all coke, coal, ore and limestone required by the furnace; to take the iron out of the cast house and pile it in the yard; to furnish all labor required to make repairs of any kind, except where it is required to have skilled labor. In consideration of the above being well and faithfully done, and to the satisfaction of the president of the company, the party of the second part hereby agrees to pay monthly, on the 14th day of each month, the sum of $2.30 per ton of 2268 lbs., for every ton of iron made during the month, from the 1st to the 31st, both days included. The party of the second part to furnish such ores as are best adapted for making Bessemer metal; coal, known as Big Muddy coal, and Connellsville coke, to be furnished in such proportions as will insure the best working of the furnace. The party of the second part to furnish weighers to weigh all materials going into the furnace and the pig iron coming out of the cast house. No clerk hire to be paid by the party of the first part. This agreement is also based on price of general or common labor, being $1.10 per day; if a general advance or reduction is made over the country, the party of the second part to pay or deduct an advance or reduction equal to that paid elsewhere, or stand between the party of the first part and loss in case of a strike. At the termination of this contract the cost of filling the furnace to be paid by the Jupiter Iron Company, unless I keep it until the natural end of a blast; also, for any stock of ore, fuel and limestone that may be used and unloaded by me. This contract to be in full force for one year from the time of lighting the furnace. Should it be necessary to unload any of the coke, coal, ore or limestone outside of the stock house, the Jupiter Iron Company to pay the actual expense of taking it to the stock house when wanted. Should it be necessary to bank up the furnace, the Jupiter Iron Company to pay the wages of such men as may be actually required to care for the furnace.

Made in duplicate, this 27th day of March, 1877.

[SEAL.]

D. R. GARRISON,

[SEAL.]

PIERRE CHOUTEAU.

[SEAL.]”

The evidence on the part of plaintiff tended to establish the following facts: Some time in 1873, the defendant erected the furnace known as the ““Jupiter Furnace,” at a cost of several hundred thousand dollars, but, owing to the depression in the business, did not complete it, and in the spring of 1877, concluded to finish it, in the expectation of lighting the furnace at an early day. There was another furnace known as “The Vulcan,” which, it was thought, would consume the products of both furnaces. Under these circumstances the above agreement was made between the parties. By another agreement in parol, plaintiff was employed to superintend the completion of the Jupiter furnace, which he did, and for which the defendant compensated him. In the fall of 1877, the depression in the iron trade continuing, it was concluded, with evidence of plaintiff's concurrence, not to light the furnace. Between the fall of 1877 and the fall or winter of 1879, the furnace remained idle, and in that fall or winter, it was leased for a term of five years to the Vulcan Steel Company, which lighted the furnace. There was evidence, consisting of conversations and correspondence between plaintiff and officers of defendant, tending to prove a mutual agreement to abandon the contract between plaintiff and the company, and the same character of evidence to the contrary. No express agreement to abandon it was proved.

The court refused the following instructions asked by plaintiff: “If the jury find and believe from the evidence that the Jupiter Iron Company and the Jupiter Iron Works are one and the same body corporate, and that Daniel R. Garrison was its president on the 27th day of March, 1877, and that he signed and delivered the contract of that date read in evidence on behalf of that company, and plaintiff accepted the same and actually entered upon the duties devolving upon him under the said contract, or was ready, able and willing to carry out the same, and defendant would not permit him to do so, and hindered and prevented his performing the duties arising under the same, or, if defendant disabled itself from carrying out its portion of the contract, as by selling or leasing the furnace described in the contract for a term of years, without the assent of plaintiff, then and in that event, plaintiff is entitled to your verdict.”

“On the question of abandonment, or rescission of contracts, the court instructs you as follows: If under the first instruction for plaintiff given you, you find and believe from the evidence that the agreement read in evidence was made between plaintiff and defendant, then the court instructs you that before you can find an abandonment of the contract by both parties, the burden is on defendant to prove to your satisfaction that the contract has been abrogated or rescinded by mutual consent; and to abrogate or rescind a contract by mutual consent, after it is once entered into, requires a meeting of the minds of the contracting parties; and unless you find that the minds of the parties met on the fact of rescinding or abrogating...