Curry v. Boeckeler Lbr. Co.

• Decision Date: 06 May 1930
• Docket Number: No. 20956.,20956.
• Citation: 27 S.W.2d 473
• Court: Missouri Court of Appeals
• Parties: CHARLES C. CURRY v. BOECKELER LUMBER COMPANY, A CORPORATION, APPELLANT.<SMALL><SUP>*</SUP></SMALL>

27 S.W.2d 473

CHARLES C. CURRY v. BOECKELER LUMBER COMPANY, A CORPORATION, APPELLANT.^*

No. 20956.

St. Louis Court of Appeals, Missouri.

Opinion filed May 6, 1930.

Appeal from the Circuit Court of the City of St. Louis. — Hon. James F. Green, Judge.

REVERSED.

Seneca C. Taylor and John H. Haley for appellant.

(1) The petition in this cause does not state facts sufficient to constitute any cause of action against defendant. It does not plead actual loss of profit on contract of resale, nor is there any allegation in the petition of any actual loss or damage to plaintiff other than the bare allegation that "by reason of the failure of defendant to deliver, plaintiff has been damaged in the sum of $4366.12." Wilson & Son v. Russler & Gragi, 91 Mo. App. 275, l.c. 284; Wall v. Ice & Coal Storage Co., 112 Mo. App. 659. (2) Defendant's instruction in the nature of a demurrer offered at the close of plaintiff's evidence and at the close of all the evidence should have been given to the jury, because the evidence fails entirely to show any actual loss by plaintiff because of the alleged breach of contract, to justify the recovery of either general or special damages. Wall v. Ice & Cold Storage Co., 112 Mo. App. 659. (3) The court erred in giving instruction No. 1 offered by plaintiff — First. Because it authorizes the jury to find for plaintiff without plaintiff having shown by the evidence in the cause any actual loss or damage. Second. Because it authorizes the jury to find speculative profit for plaintiff. Third. Because the instruction tells the jury that plaintiff bought the lumber by the piece, when the contract is by the thousand feet, which was highly prejudicial to defendant, considering plaintiff's improperly admitted testimony and calculations of the difference in the price per piece of material bought and sold by the thousand feet. Fourth. Because the instruction authorizes the jury to find for plaintiff on the theory of remote damages, possible gain and contingent profit, without finding from the evidence that plaintiff had sustained an actual loss or suffered actual damage. It is clear from the evidence in this cause that plaintiff could have at any time purchased this material on the open market at the same or less price than he agreed to pay defendant. It is conceded plaintiff did not do this. He merely took a quotation on different material and sues, not for actual loss, but for a profit he "figures." Fifth. Because the instruction permits recovery by plaintiff, even though he might have purchased the material on the open market without loss. (4) The court erred in giving to the jury plaintiff's instruction No. 3, instructing the jury "to disregard all evidence in this case with respect to plaintiff releasing defendant from delivering all of the lumber provided for in the contract in evidence, and that said release was without consideration and is therefore invalid and unenforceable." An executory contract may be rescinded or set aside by mutual agreement of the parties, and no other consideration is necessary. Facendini v. Hillman, 298 S.W. 1074; Stoedter v. Turner, 237 S.W. 141; Conroy Piano Company v. Pesch, 279 S.W. 226; Rener v. Luchow, 280 S.W. 78; Sheetz v. Price, 136 S.W. 733.

Stern & Burnett for respondent.

(1) The petition contains a sufficient allegation of damages as against a demurrer and particularly after verdict. 35 Cyc., p. 624. (2) Plaintiff was not required to go in the open market and actually purchase in order to show loss of profit nor to recover difference between contract and market price. Wilson & Son v. Russler & Gnagi, 91 Mo. App. 275; Wall v. Ice & Cold Storage Company, 112 Mo. App. 659; Barnett & O'Neal v. Grain Company, 153 Mo. App. 458. (3) Instruction No. 1, as given by the court, was proper under the law and the evidence. (4) Instruction No. 3, as given by the court, was proper. Swaggard v. Hancock, 25 Mo. App. 596; Lingenfelder v. The Wainwright Brewing Association, 103 Mo. 578; Holladay-Klotz Land & Lumber Company v. The Beekman Lumber Company, 136 Mo. App. 176; 13 C.J. 600.

SUTTON, C.

This is an action to recover damages for the breach of a contract for the sale of four carloads of lumber. The trial with a jury resulted in a verdict and judgment for plaintiff for $2716.80.

Plaintiff is engaged in the lumber business in the city of Chicago, and defendant is engaged in a like business in the city of St. Louis. On August 27, 1926, plaintiff sent defendant an order for lumber as follows:

"Please ship to (shipping directions to follow) "B & Better short leaf pine; straight and free from knots, pitch and wane. Sap stains no defect. Thoroughly dried and smoothly machined to exact dimensions.

90,000 ft. 1½×2½ — 8' S4S to 1-5/16×2¼" 20,250 ft. 1½×3 — 9' do 1-5/16×2¾"

Price $58.00 per M f.o.b. Chicago rate. Terms — 60-2-10.

"Delivery — To begin as soon as possible and be completed this year."

On August 30, 1926, defendant wrote plaintiff accepting the order, with the modification that the lumber should be free from excessive pitch, instead of free from pitch as stated in the order.

On September 14th, plaintiff wrote defendant directing shipment to the Goshen Manufacturing Company, Goshen, Indiana, stating that, as Goshen required a higher freight rate than Chicago, he advanced the price from $58 to $58.50 per thousand, f.o.b. Goshen, and stating further, that he had arrangements with the Transportation Bank of Chicago for payment for shipments by Goshen Manufacturing Company to the bank, and that when the bank received payment it would pay the defendant.

There was much correspondence between the parties with reference to delay in the shipment of the first car of lumber. Plaintiff expressed his disappointment that the shipment of the first car had been delayed, but stated that this was not because he was concerned about the shipment of the first car, as his contract with defendant only required that the entire order be gotten off during the year, and that he feared that this would not be done. Defendant insisted that the delay in the shipment resulted from the occurrence of heavy rains. It appears that plaintiff employed an attorney, who interviewed defendant concerning the shipment of lumber. Thereupon, on December 21st, defendant wrote plaintiff, that one car was ready for shipment, but that inasmuch as plaintiff had engaged a lawyer, defendant would not let this car go forward unless plaintiff wrote defendant that he would not make any claim against defendant, as it would rather keep the lumber in its yard than have any trouble.

In reply to this plaintiff wrote defendant that, after investigation, he had concluded that, although defendant had never before questioned his right to receive all of the lumber under his contract with defendant, nevertheless, if defendant would ship one of the cars right away he would release defendant from any claim under his contract with defendant, and requested that defendant let the car come forward at once. Thereupon, defendant wired plaintiff that it was shipping the car, and it was accordingly shipped and duly received by the Goshen Manufacturing Company. This company at first refused to accept the lumber on the ground that it was wet and below grade. Much correspondence was carried on between the parties concerned relative to the grade of the lumber. This correspondence continued for a period of several months, with the result that the lumber was finally accepted and paid for at a reduced price. It appears that the lumber which plaintiff ordered from defendant was ordered for the purpose of filling an order he had obtained from the Goshen Manufacturing Company. There was much evidence tending to show that the dispute which arose relative to the grade of the lumber was on account of the fact that the order of the Goshen Manufacturing Company to plaintiff specified a higher grade of lumber than was specified in plaintiff's order to defendant, but the dispute between the parties relative to the grade of the lumber was fully adjusted and settled, so this dispute is not involved here. The check for this car of lumber was sent by plaintiff to defendant on February 14, 1927, and it specified on its face that it was in full settlement for the car of lumber shipped by defendant to the Goshen Manufacturing Company.

This suit, which was instituted on August 29, 1927, is to recover damages for failure of defendant to ship or deliver the rest of the lumber specified in plaintiff's order to defendant. So far as the record shows, there was no further correspondence or communication between plaintiff and defendant relative to the shipment of the remaining three carloads of lumber, and no request was made by plaintiff for the shipment thereof after defendant shipped the one carload pursuant to the plaintiff's letter assuring defendant that if one car of lumber was shipped he would release defendant from any claim under his contract with defendant.

Plaintiff testified that he made inquiry of a number of lumber dealers and that their quotations on the proposition submitted by him were considerably higher than the price he had agreed to pay for the lumber ordered from defendant, and that he was unable to procure the lumber at a price as low as that stipulated in his contract with defendant. The evidence tends to show, however, that the prices quoted by these lumber dealers were quoted on lumber of a higher grade than that specified in the contract with defendant. It also appears that the dealers whose quotations plaintiff received were on lumber of larger dimensions than those specified in the contract with defendant, so that it was necessary to cut the lumber down to the dimensions specified. It was thus necessary to use and charge...