Consumers Grocery & Meat Company v. N. Comensky
| Decision Date | 08 June 1923 |
| Citation | 252 S.W. 420,299 Mo. 43 |
| Parties | CONSUMERS GROCERY & MEAT COMPANY v. N. COMENSKY, Appellant |
| Court | Missouri Supreme Court |
Appeal from St. Louis City Circuit Court. -- Hon. William A. Taylor Judge.
Affirmed.
Anderson Gilbert & Wolfort for appellant.
(1) The alleged contract is so indefinite that there is no meeting of the minds and the contract is unenforcable. The contract specifically provided that it was against Comensky's contract with Godchaux, and under Godchaux's contract six hundred sacks were to be shipped each month commencing with January. The contract sued on does not specify which six hundred sacks were to be delivered, and is therefore so indefinite that the court cannot tell which six hundred sacks the parties had in mind. A contract must be so definite that the subject-matter can be identified, and if indefinite it is unenforceable. The secret intention of the parties cannot be imparted into contracts whose terms are plain, and do not express it. Gloeckner v. Kittlaus, 192 Mo. 477; Price v. Atkinson, 117 Mo.App. 52; Cold Blast Transp. Co. v. Bolt & Nut Co., 114 F. 75; Northrup v. Colter, 150 Mo.App. 646; Johnson v. Fecht, 185 Mo. 335, 345; Mason v. Small, 130 Mo.App. 252; Price v. Wiesner, 111 P. 439; Wineburgh v Gay, 150 P. 1003; Buckmaster v. Consumers Ice Co., 5 Daly's Rep. 313; Watt v. Wisconsin Cranberry Co., 18 N.W. 898; Oakland Motor Car Co. v. Indiana Automobile Co., 201 F. 499; Alabama Mineral Land Co. v. Jackson, 121 Ala. 172; Radzinski, Adm., v. Ahlswede, 185 Ill.App. 517; Erwin & Williams v. Erwin, 25 Ala. 236. (2) As the writing is incomplete and does not identify the subject-matter, or provide any means by which it may be identified, the contract cannot be pieced out by parol. Reigart v. Coal Co., 217 Mo. 142, 160; Meramec Co. v. Kreis, 261 Mo. 160, 169; Anderson v. Hall, 273 Mo. 307, 313; Johnson v. Fecht, 185 Mo. 335, 345; Ringer v. Holtzclaw, 112 Mo. 519; Mason v. Small, 130 Mo.App. 249. (3) Even if plaintiff had been entitled to recover on a valid contract, it is not entitled to recover in this case because no proof was offered to show that plaintiff was able to go on with its agreement. To recover, plaintiff must prove its ability to pay. Cook v. Salisbury, 225 S.W. 113; Lombard v. Sills, 170 Mo.App. 558; Hayden v. Grillo, 35 Mo.App. 655; Brown v. Lee, 192 F. 820; Grady v. McCleese, 47 N.C. 145; Lassen v. Mitchell, 41 Ill. 101. (4) The court erred in refusing to permit the defendant to show that checks given the defendant by the plaintiff had been returned for insufficient funds. Where property is sold for cash, title does not pass unless cash is paid and if on previous transactions plaintiff had not made payments as agreed, defendant is justified in refusing further deliveries. Wright v. Miss. Valley Trust Co., 144 Mo.App. 64; Boyd v. Bank of Mercer County, 160 S.W. 587; Ohio Valley Buggy Co. v. Anderson Forging Co., 81 N.E. 574; Peters Grocery Co. v. Collins Bag Co., 55 S.E. 90. (5) Instruction 2 does not follow the contract alleged in the petition, but permits recovery on a modification. Where recovery is sought upon the contract recovery cannot be had upon a contract which was subsequently modified unless the modification is pleaded. Koons v. Car Company, 203 Mo. 259; Mt. Vernon Car Mfg. Co. v. Hirsch Rolling Mill Co., 227 S.W. 74; Ostrander v. Messmer, 223 S.W. 442; Roaring Fork Potato Growers v. Clemons, 193 Mo.App. 658; Tausig v. Mill & Land Co., 124 Mo.App. 220. Nor does the proof or instruction of plaintiff follow the petition in that the petition alleges there was only one kind of sugar, while the undisputed evidence shows more than one.
Abbott, Fauntleroy, Cullen & Edwards for respondent.
(1) The plaintiff pleaded a contract. The defendant admitted it expressly, did not plead the Statute of Frauds or deny the existence of the contract. After thus taking that position in the lower court the appellant cannot be permitted to change front and now allege that there was no contract. The Statute of Frauds goes only to the remedy and may be waived by defendant, and where defendant admits the contract but seeks to avoid its effect under the Statute of Frauds he must expressly plead the statute in his answer, otherwise the defense is waived. Maybee v. Moore, 90 Mo. 340; Martin v. Ray County Coal Co., 288 Mo. 241; Ranck v. Wickwire, 255 Mo. 58; Robsuhl v. Lack, 35 Mo. 316; Gardner v. Armstrong, 31 Mo. 535; Graff v. Foster, 67 Mo. 512; Randolph v. Friek, 50 Mo.App. 275; Newirth v. Engler, 83 Mo.App. 420; Mathews v. Wallace, 104 Mo.App. 96; Moormeister v. Hannibal, 180 Mo.App. 717. Even if the issue of indefinite contract was in the case the court would be bound to hold the contract valid. New England Wool Co. v. Standard Worsted Co., 165 Mass. 328. There was no difference in the sugar, but if there had been it would not avail defendant, because plaintiff was ready to accept either kind, and the contract gave defendant an option to deliver either kind of sugar. Brugess Sulphite Fibre Co. v. Broomfield, 180 Mass. 283. (2) The third proposition presented by appellant's brief is that there was no proof tending to show that plaintiff was able to buy and pay for the sugar. Such an issue is not involved in this case under the pleadings or under the proof, because both the pleading and proof proceed upon the theory that the contract had ceased to exist, and defendant refused to perform it. In other words, the case proceeds upon the theory that the defendant breached his contract and the undisputed testimony tends to show that defendant was in default, breached his contract, and under such circumstances plaintiff's cause of action accrued, and it was no part of the cause of action to prove ability to perform. Under such circumstances the ability to perform is presumed and proof of ability is not required. When it is alleged and proved that defendant has refused to perform on his part, and has actually prevented performance by plaintiff, then readiness to perform need not be shown. Kent v. Addicks, 126 F. 112; Lonsdale v. Brown, 15 Fed. Cas. No. 8493; Christy v. Stafford, 123 Ill. 463; Moore v. Hopkins, 15 La. Ann. 675; Cowley v. Davidson, 13 Minn. 92; Kupfer v. McConville, 35 N.D. 622; Thomas v. Matthews, 94 Oh. St. 32, L. R. A. 1917A, 1068; Baker v. Haswell, 36 Okl. 429; Pinjus v. Hamaker, 11 Serg. & R. 200; Burns v. Welch, 8 Yerg. 117; Tiernan v. Napier, 5 Yerg. 410; Gulf Railroad Co. v. Dennison, 22 Tex. Civ. App. 89; Wilbot v. McGillicuddy, 3 La. 382; Howell v. Gould, 2 Abb. Dec. (N. Y.) 418, 3 Keyes, 422; Chicago House Wrecking Co. v. James H. Rice Co., 67 Ill.App. 686; 13 Corpus Juris, sec. 953, p. 763; Dobbins v. Edmonds, 18 Mo.App. 307; Pullman v. Corning, 9 N.Y. 93; Levy Motor Co. v. City Motor Cab Co., 174 Ill.App. 20.
Action for damages for an alleged breach of contract. Plaintiff charges that defendant sold to it 600 bags of Godchaux sugar, at $ 15 per bag or sack, to be delivered "on arrival f. o. b. cars, St. Louis." Plaintiff avers that there is but one grade of Godchaux sugar. It also charges that defendant breached the contract and refused to deliver the sugar. That sugar advanced in price, and that plaintiff was damaged in the sum of $ 9,000, by reason of said breach of the contract. The contract, purports to be dated December 30, 1919, and reads:
Pazdera was the purchasing agent for plaintiff corporation. The contract with Godchaux Company referred to in the above contract reads:
Address St. Louis, Mo.
Terms: Cash Net.
"Ship to N. Comensky Gro. Co.,
Destination St. Louis, Mo.
Routing. . . .
cane
granulated 13 1/2 Sellers privilege to f. o. b.
By answer the defendant (1) admits the sale of the sugar as stated by plaintiff (a) that said sale was on or about December 30, 1919, (b) avers that their said agreement of sale contained the following clause:
After the foregoing admissions the answer proceeds (2) a general denial of all other allegations of the petition, and (3) a plea in this language:
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