Clough v. A. J. Stillwell Meat Co.
Decision Date | 04 April 1905 |
Citation | 86 S.W. 580,112 Mo. App. 177 |
Parties | CLOUGH v. A. J. STILLWELL MEAT CO. |
Court | Missouri Court of Appeals |
4. A warehouseman agreed to store apples till a certain date in the future at a stipulated price per barrel, reload and ice the cars to protect the fruit when directed by the owners, and keep the apples insured at his expense against loss by fire while in storage. The apples were destroyed by fire before the expiration of the period the storage was contracted for, and the warehouseman, at the request of the owners, collected the insurance money for them, which was a service the storage contract did not require of the warehouseman. Held that, thought the contract made no provision for payment to the warehouseman in case of failure to substantially perform the contract, an implication that the warehouseman was intended to be remunerated was raised; and hence the warehouseman was entitled to such sum as the services performed were reasonably worth.
5. The reasonable value of the services performed by the warehouseman was a question of fact.
Appeal from Hannibal Court of Common Pleas; David H. Eby, Judge.
Action by E. R. Clough against the A. J. Stillwell Meat Company. From a judgment for defendant, plaintiff appeals. Reversed.
Bland & Cave, for appellant. G. W. Whitecotton, for respondent.
Statement.
The defendant, an incorporated company, conducts a cold storage warehouse and packing establishment in the city of Hannibal, in Marion county. In October and November, 1901, the plaintiff, Clough, and four other persons, all of Laclede county, delivered to the defendant 3,990 barrels of apples for storage during the season, but not later than May 1, 1902. The apples were deposited for storage under separate contracts with the different owners. On January 13, 1902, the apples, except some removed from the warehouse before that date, were destroyed by fire, without fault on the part of the defendant. It was part of the contract between the consignors and the defendant that the latter should unload the apples from railroad cars at its plant, repack them if necessary, insure them against loss by fire for the season for the benefit of the owners, load them in cars for shipment at such times as the owners might direct, and ice the cars to protect the apples while in transit. For those services the defendant was to be paid 50 cents a barrel, there being an express stipulation that no apples would be accepted by the defendant on short storage. In December, 1901, 191 barrels of apples were withdrawn from the warehouse, but the full rate of 50 cents a barrel was paid the defendant for caring for said apples. After the destruction of the remaining apples by fire, the defendant collected from the insurance companies which had taken risks on the property the sum of $12,559.15, the full value of the apples, out of which sum the defendant deducted $1,904.50 for storage charges, and paid the balance to the owners. The several owners, instead of conceding the defendant's right to retain storage charges out of the insurance money, assigned their claims for their proportionate parts of the sum retained to the plaintiff, Clough, who instituted this action to recover the sum ($1.904.50) from the defendant. The petition contains two paragraphs, the first declaring on the contract, the second asking judgment quantum meruit, and laying the value of the services rendered by the defendant in connection with the apples burned at 50 cents a barrel. No written memorandum was put in evidence, and the contract between the parties appears to have been verbal. The only evidence introduced was put in by the plaintiff, and was an excerpt from the defendant's answer, which reads as follows:
On this evidence the plaintiff requested and the court gave the following declarations of law: The court entered judgment for the defendant, and plaintiff appealed.
The declarations of law and the judgment given by the learned circuit judge indicate that he thought there could be no recovery quantum meruit because the contract in suit is indivisible, but that the defendant had fully performed its undertaking, and was entitled to the stipulated reward. The...
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