Eastern States Refrigerating Co. v. J. W. Teasdale & Co.

• Citation: 211 S.W. 693
• Decision Date: 08 April 1919
• Docket Number: No. 15369.,15369.
• Court: Court of Appeal of Missouri (US)
• Parties: EASTERN STATES REFRIGERATING CO. v. J. W. TEASDALE & CO.

211 S.W. 693

EASTERN STATES REFRIGERATING CO. v. J. W. TEASDALE & CO.

No. 15369.

St. Louis Court of Appeals. Missouri.

April 8, 1919.

Appeal from St. Louis Circuit Court; Thomas C. Hennings, Judge.

"Not to be officially published."

Action by the Eastern States Refrigerating Company against J. W. Teasdale & Co. From judgment for plaintiff, defendant appeals. Reversed.

Oliver M. Charleville, of St. Louis, for appellant.

O. E. Woods, of St. Louis, for respondent.

BECKER, J.

This is an appeal from a judgment in favor of the plaintiff and against the defendant in the sum of $600, based upon an alleged oral agreement to the effect that defendant agreed to deliver and plaintiff to store in its warehouse in Springfield, Mass., 10 carloads of evaporated apples, for which defendant agreed to pay plaintiff one-half cent per pound from the time of the making of the contract, namely, the 22d day of September, 1914, up to November 1, 1915, and, further, that defendant would have the option for space in which to store 10 additional carloads of evaporated apples at the same terms agreed upon for the first 10 carloads above mentioned; and that on the 28th day of November, 1915, it was agreed by and between the plaintiff and defendant that if the defendant did not use the space contracted for by the 1st day of February, 1915, it would pay the plaintiff $600.

It appears that plaintiff is a corporation located at Springfield, Mass., and that on September 22, 1914, George W. Teasdale, representing the defendant company, a Missouri corporation, had a conference at Springfield, Mass., with one Louis E. Richards, manager of the plaintiff company. As a result of this conference Teasdale was given an option, until Saturday, September 26, 1914, on refrigerating space for 20 cars of dried apples, to be stored by the plaintiff at the price of one-half cent a pound to November 1, 1915. On September 26, 1914, plaintiff received a telegram, dated at New York, September 26, 1914, as follows: "We accept on ten cars only. George W. Teasdale."

Upon receipt of this telegram plaintiff wrote a letter to the defendant company, in which it set out the terms of the agreement as it understood them, as having been made with George W. Teasdale. Other correspondence between the parties was introduced in evidence, including two letters from the defendant to plaintiff. Neither of these letters, however, contain any reference to specific terms or details of the agreement in question.

It further appears that on November 28, 1914, George W. Teasdale, representing the defendant, had a conference with the said Richards, manager of the plaintiff company, at Springfield, Mass., the result of which conference was an agreement that if the defendant did not have his apples in storage by February 1, 1915, the defendant would pay the plaintiff $600.

It is uncontroverted that the defendant company did not ship any apples for storage prior to February 1, 1915, and on February 2, 1915, the plaintiff rendered the defendant an invoice for $600; that on March 8, 1915, the said Richards, at St. Louis, asked George W. Teasdale when he was going to have his company send plaintiff a cheek for $600, and Teasdale stated he would take it up with his brother and see that the check was forthcoming, and that again, on March 10th, said Teasdale stated to the said Richards that he would see that this check would come forward at a prompt date.

Plaintiff introduced in evidence the Revised Statutes of the state of Massachusetts for 1902, and chapter 74, relating to, "Of the Prevention of Frauds and Perjuries." There is no testimony offered on behalf of the defendant. At the close of the case the defendant offered an instruction in the nature of a demurrer, which the court overruled.

It is conceded by the appellant that this case is to be governed by the laws of the state of Massachusetts. The statute of frauds of the state of Massachusetts provides that no action shall be brought upon an agreement that is not to be performed within one year from the making thereof, unless the promise, contract or agreement upon which such action is brought, or some memorandum or note thereof, is in writing and signed by the party to be charged therewith or by some person thereunto by him lawfully authorized. The statute of frauds in Missouri is to the same effect.

I. Let us first consider the agreement of September 22, 1914, which, according to plaintiff, was for the storage of apples at the rate of one-half cent per pound to November 1, 1915, and determine whether it is a contract that is to be performed within one year from the making thereof. As we read this agreement it intended to give to the defendant the privilege of storing 10 carloads of evaporated apples from the date of the making thereof, September 22, 1914, to November 1, 1915, for the price and at the rate of one-half cent per pound. It seems quite clear that if such was the intent of the agreement, then it could not be performed within one year from its date. Learned counsel for appellant argues that the agreement might perhaps be performed within a year from its date, as, for instance, by the defendant having stored the apples for a period of time and having taken them out of storage within less than a year, and not having stored any apples with the plaintiff thereafter. This, however, is not sufficient to bring the agreement within the exception, namely, that class of cases which may be performed within a year from the date thereof consistently with its terms, and not in violation thereof, and thus not be within the terms of the statute, such as a contract to support one for life, during an indefinite period, or to do any other thing...