Clough v. Stillwell Meat Company

• Decision Date: 04 April 1905
• Parties: CLOUGH, Appellant, v. STILLWELL MEAT COMPANY, Respondent
• Court: Missouri Court of Appeals

86 S.W. 580

112 Mo.App. 177

CLOUGH, Appellant, v. STILLWELL MEAT COMPANY, Respondent

Court of Appeals of Missouri, St. Louis

April 4, 1905

Appeal from Hannibal Court of Common Pleas.--Hon. David H. Eby Judge.

REVERSED AND REMANDED.

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 3990 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 his 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 fifty cents a barrel, there being an express stipulation that no apples would be accepted by the defendant on short storage. In December, 1901, one hundred and ninety-one barrels of apples were withdrawn from the warehouse, but the full rate of fifty cents a barrel was paid the defendant for caring for said apples.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 fifty 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:

"Defendant further answering, says that on the day of September, 1901 it contracted and agreed with the said E. R. Clough, plaintiff herein and his said assignors C. C. Draper, Mrs. R. P. Bland, S. F. Lumm, and M. W. Johnson, each severally and on his or her own account to furnish them and each of them with warehouse space and cold storage room and facilities for apples in the aggregate quantity of 3990 barrels, for the season ending not later than May 1, 1902, and for the express and agreed consideration of 50 cents per barrel for the said season. That by the terms of said contract and for the said consideration of 50 cents per barrel, defendant agreed to unload the apples from the cars at its plant when shipped to it by said owners, repack them if necessary, insure them against loss by fire at its own expense for the said season to the use and benefit of parties interested, reload them upon cars for shipment if requested so to do by said owners and at such times as said owners might direct, and ice the cars to protect said apples in transit from the warehouse; for which said services and expense plaintiff and his assignors as aforesaid agreed to pay defendant 50 cents per barrel for all apples so stored with it, it being expressly agreed between plaintiff and his said assignors and this defendant that no apples would be taken or stored by defendant on short storage.

"Defendant says that in pursuance of said contract the plaintiff and his said assignors on the day of October, 1901, placed with defendant 3990 barrels of apples, and that defendant received same, unloaded them in its warehouse and had said apples fully insured at its expense to protect plaintiff and his assignors against loss by fire. Defendant says that subsequently, to-wit, on the day of December, 1901, the plaintiff and his said assignors withdrew from storage at defendant's plant 191 barrels of their said apples and for which said 191 barrels of said apples so withdrawn the plaintiff and his said assignors paid defendant 50 cents per barrel, pursuant to their said agreement and contract for storage. That afterwards, to-wit, on the 13th day of January, 1902, without any fault or negligence on its part whatever, the defendant's warehouse and storage rooms together with plaintiff's and his assignors' entire remaining stock of said apples, to-wit, 3809 barrels, were totally destroyed by fire. That at the instance and request of plaintiff and his said assignors, the defendant adjusted the loss upon said apples with the insurance companies; that in said adjustment said apples were treated as a total loss; that upon the basis of such total loss the defendant collected from said companies for said loss the full market value of said apples measured by the market prices prevailing on said 13th day of January, 1902, the date of said fire and destruction of said apples, to-wit, the aggregate amount of $ 12,559.15; that said amount so collected from said companies represented the full market value of all said apples so remaining in storage; that at the time of said fire on the said 13th day of January, the market price of apples was higher than it was at any prior or subsequent time during said season, and that in its settlement with said insurance companies defendant received a higher price and an aggregate larger sum for said apples so destroyed than could have been realized from them on the market at any other time during said season.

"Defendant says that it duly accounted to plaintiff and his said assignors for said aggregate amount of $ 12,559.15 so collected by it from said insurance companies for the loss of said apples, by remitting and paying over to plaintiff and his said assignors, respectively, according to the interests they severally held, said sum of $ 12,559.15, saving and excepting to itself from said sum the stipulated charge of 50 cents per barrel for the storage due the defendant under said contract upon the apples remaining in said warehouse at the time of said fire, that is to say, a storage charge of 50 cents per barrel upon 3809 barrels, and amounting in all to $ 1,904.50. That said $ 1,904.50 defendant applied, under said contract, to pay said storage charges on said 3809 barrels of apples remaining in its warehouse at the time of said fire."

On this evidence the plaintiff requested and the court gave the following declarations of law:

"The court declares the law to be that the contract under which the apples were placed in storage is entire.

"The court declares the law to be that, where the subject-matter of an entire contract has been destroyed by fire or otherwise, without the fault of either party, then there can be no recovery either on a quantum meruit or on the contract, for any part performance prior to said destruction of the subject-matter."

The court entered judgment for the defendant and plaintiff appealed.

Judgment reversed and cause remanded.

Bland & Cave for appellant.

(1) Where a party, by his own contract, creates a charge or duty upon himself, he is bound to make it good, notwithstanding any accident by inevitable necessity, because he might have provided against it by his contract. So the defendant could and should have provided in its contract for the contingency of fire and for proportionate charges for proportionate service. Whitemore v. Sills, 76 Mo.App. 248. (2) Where it appears from the nature of the contract that the parties must from the beginning have contemplated the continuing existence of some particular thing, as the foundation of what was to be done, and that thing is destroyed by fire before the time for full performance without the fault of either party, both parties are excused from performing the contract, because a condition is implied by law that the impossibility of performance arising from the destruction of the thing shall excuse performance, and where the contract is "divisible," there may be a pro-rata recovery on a quantum meruit, for a part performance; but, if the contract be "entire," there can be no recovery either on a quantum meruit or on the contract for any part performance prior to such destruction of the subject-matter. Cunningham v. Kenney, 105 Cal. 119; Archer v. McDonald, 36 Hun (N. Y.) 194; Stonam v. Waldo, 17 Mo. 489; Brinkerhoff v. Elliott, 43 Mo.App. 185; Mo. Pac. Ry. Co. v. Levy, 17 Mo.App. 506; The Tornado, 108 U.S. 351; Siegel v. Eaton, 165 Ill. 550; Huyett & Smith Co. v. Edison Co., 167 Ill. 233. On this point we submit there are no authorities to the contrary. (3) The contract under which the apples were placed in storage is unquestionably an "entire" contract and the apples (whose continuing existence the parties must have contemplated) were destroyed by fire before the time of full performance, and there can be no recovery for any part performance.

G. W. Whitecotton for respondent.

GOODE, J. Nortoni, J., concurs, Bland, P. J., not sitting.

OPINION

GOODE, J. (after stating the facts).

The declarations of law and the judgment given by the learned circuit judge indicate that he thought there could be no recovery, quantum meruit,...