Cluley-Miller Coal Co. v. Freund Packing & Mfg. Co.

• Decision Date: 14 June 1909
• Parties: CLULEY-MILLER COAL CO. v. FREUND PACKING & MFG. CO.
• Court: Missouri Court of Appeals

120 S.W. 658

138 Mo. App. 274

CLULEY-MILLER COAL CO. v. FREUND PACKING & MFG. CO.

Kansas City Court of Appeals. Missouri.

June 14, 1909.

1. SALES (§ 83)—BREACH OF CONTRACT.

Where plaintiff contracted to ship coal sold by it to defendant over a certain railroad line from a connecting point, that it could not obtain cars belonging to such line at the point of shipment did not entitle it to divert the shipment from the route prescribed in the contract.

2. CONTRACTS (§ 303) — BREACH — INABILITY TO PERFORM.

Mere inability of a party to a contract to perform its conditions affords no excuse in law for his failure to perform them.

3. SALES (§ 177) — BREACH — INDEPENDENT COVENANTS.

Where plaintiff agreed to send a shipment of coal sold by it to defendant over a certain route, but sent it over another, the breached condition of the contract was in the nature of an independent and not a dependent covenant, and defendant was not justified in refusing the coal, but should have accepted it, relying on its right to recover of plaintiff damages sustained in consequence of the breach.

4. SALES (§ 161)—DELIVERY—DELIVERY TO CARRIER.

Where a contract for the sale of coal by plaintiff to defendant provided that the coal should be shipped over the R. I. Railroad, but both parties knew such road did not reach B., the point of shipment, and could not receive the coal until it arrived at St. Louis, delivery of the coal by plaintiff to the only carrier to which delivery could be made constituted delivery to defendant.

Appeal from Circuit Court, Buchanan County; Henry M. Ramey, Judge.

Action by the Cluley-Miller Coal Company against the Freund Packing & Manufacturing Company. Judgment for defendant, and plaintiff appeals. Reversed and remanded.

Perry A. Brubaker, for appellant. Eastin & Corby, for respondent.

JOHNSON, J.

Plaintiff brought this suit to recover the purchase price of two cars of coal which the petition alleges were sold and delivered to defendant. The answer is a general denial, and the defense is that the evidence of plaintiff fails to show a delivery of the coal in accordance with the terms of the contract of sale. A jury was waived, evidence was introduced by plaintiff, but no evidence was offered by defendant. After holding the case under advisement, the court sustained a demurrer to the evidence and rendered judgment for defendant. Plaintiff appealed.

Plaintiff is a corporation engaged in the business of mining and selling coal. Its principal office is in St. Louis, and its mines are at Belleville, Ill. Defendant is a corporation in the packing business at St. Joseph, and is a consumer of coal. The contract which gave rise to the controversy consists of the following telegrams and letters: Telegram from defendant to plaintiff dated April 20, 1906: "Ship us two cars Illinois mine run three thirty-five per ton f. o. b. cars St. Joseph. Answer quick." Telegram plaintiff to defendant, sent April 21st: "Your wire can ship two mine run today one thirty mines. Rate two dollars five ton guaranteed terms sight draft bill lading attached. Answer and wire routing quick." Telegram defendant to plaintiff, dated April 21st: "Answering message ship two cars mine run via Rock Island." Letter of plaintiff to defendant April 21st: "We are in receipt of your wire accepting terms for shipment of two cars of mine run coal and have this day shipped you cars 19720 and 19729 C. & A. R. R. This coal is routed via C. & A. R. R. and C. R. I. & P. R. R., and ought to make prompt movement. Trusting you will find same satisfactory, we are, yours truly." The coal was loaded in Chicago & Alton cars April 21st, and was delivered at Belleville to the Louisville & Nashville Railroad for transportation to St. Joseph. It arrived at East St. Louis April 22d, and there was delivered by the Louisville & Nashville to a terminal railroad. It was taken across the Mississippi river April 26th, and delivered to the Chicago & Alton Railroad Company at St. Louis. No bill of lading issued by the Louisville & Nashville (L. & N.) Railroad Company appears in the record, but one issued by the Chicago & Alton (C. & A.) Company was introduced in evidence. It provides for the transportation of the shipment from East St. Louis "to St. Joe, Mo., via St. Joe and Grand Island, care of C. R. I. & P.," and the rate given is "special $1.80 per net ton." The Chicago & Alton Railroad Company carried the coal to Kansas City, and delivered it to the St. Joseph & Grand Island Railroad Company under some traffic arrangement between the two companies, the nature of which is not disclosed. The Grand Island Company transported the coal to St. Joseph, and tendered it to defendant May 1st. Defendant refused to receive it or to pay the draft drawn by plaintiff for the purchase price. The reasons assigned for the refusal appear in a letter from defendant to plaintiff, dated May 8th, as follows: "Referring to your telegram received this p. m. asking why your two cars coal were refused, beg to advise that when we ordered same, we were desperate for coal and we wired you asking if you could ship us two cars immediately, and you advised us you could, and stated further that it would go forward on the 21st of April via C. & A. and R. I. Ry. Our shipping instructions were via R. I. and finally after waiting a week we had to shut down our ice plant for lack of fuel, although during the few days prior to our having to take this step, we had been offered coal, but fearing yours would arrive, as it was past due then we did not buy any, not thinking for a minute that your coal would be on the road two weeks. It did not arrive until May 2nd, and then it came via the St. Joe and G. I. Ry., and we were endeavoring to trace same through the R. I. and I am certain they sent 7 or 8 messages trying to locate it. You can readily see that we were placed in a serious position by someone's neglect, for had we not been advised that the coal would be shipped via R. I. we could have asked the other roads. Now that coal is plentiful and much cheaper we do not feel bound in any sense to use this coal, though we dislike very much to have to decline same but we feel we are justified, and if we can assist you in disposing of same we will gladly do so." The terms "C. R. L. & P.," "Rock Island," and "R. I." refer to the Chicago, Rock Island & Pacific Railroad...