Creamery Package Manufacturing Co. v. The Sharples Co.
| Decision Date | 02 February 1903 |
| Parties | CREAMERY PACKAGE MANUFACTURING COMPANY, Respondent, v. THE SHARPLES COMPANY, Appellant |
| Court | Kansas Court of Appeals |
Appeal from Jackson Circuit Court.--Hon. James Gibson, Judge.
AFFIRMED.
Judgment affirmed.
Wollman Soloman & Cooper for appellant.
(1) It is apparent from the record that the sole defense to defendant's counterclaim was that the contract of January 10, 1899, was abandoned by the parties. That was the defense set up in the amended reply, and that was the only substantial defense to the counterclaim. (2) Now, unless there is some evidence to show that the contract of January 10, 1899, was abandoned by the parties, then it follows that the court erred in submitting the question of abandonment to the jury.
Lathrop Morrow, Fox & Moore and D. H. Cecil for respondent.
The court committed no error in submitting to the jury the question of an agreement to abandon the January contracts, as that may be established by the conduct, acts, declarations and dealings of the parties. Chouteau v. Iron Works, 94 Mo. 388; Seligman v. Rogers, 113 Mo. 642; Fine v. Rogers, 15 Mo. 315.
Plaintiff's action is on an account for $ 435.38. Defendant set up damages by way of counterclaim. The judgment in the trial court was for the plaintiff.
It appears that on January 10, 1899, plaintiff and defendant entered into a written contract, and on the same day a supplemental contract, whereby plaintiff was to sell to defendant at certain prices a large lot of butter tubs. Defendant claims a breach of such contract by plaintiff whereby it was damaged and for which damage it set up the counterclaim aforesaid. Plaintiff admitted the contract with defendant but by reply set up that it had been abandoned by the parties. The hypothesis of such abandonment was added to defendant's instructions on its counterclaim by the trial court, and that is the principal controversy between the parties. The defendant claims the court erred in so doing.
It is clear that a written contract may be abandoned by the parties to it without the formality of cancellation. Chouteau v. Iron Works, 94 Mo. 388, 7 S.W. 467; Seligman v. Rogers, 113 Mo. 642, 21 S.W. 94; Fine v. Rogers, 15 Mo. 315. And whether there had been such abandonment was a question of fact and it was therefore proper to submit it to the jury for decision. Fine v. Rogers, supra.
It is however, a part of defendant's contention that there was no evidence upon which the court was authorized...
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