Eaton v. Wear Coal Co.

• Decision Date: 01 April 1907
• Citation: 125 Mo. App. 194,101 S.W. 1140
• Parties: EATON et al. v. WEAR COAL CO.
• Court: Missouri Court of Appeals

101 S.W. 1140

125 Mo. A. 194

EATON et al. v. WEAR COAL CO.

Kansas City Court of Appeals. Missouri.

April 1, 1907.

Rehearing Denied May 6, 1907.

SALES — CONSTRUCTION OF CONTRACT — AMOUNT AGREED ON — CONSTRUING INSTRUMENTS TOGETHER.

Plaintiff placed an oral order with a salesman for 6 cars of coal to be shipped and 44 cars more booked for future delivery. The order was accepted by the company and 6 car loads delivered. Afterwards there was considerable correspondence over the company's delay in making delivery of the remaining 44 car loads, in the course of which the company stated that it was not denying the order, but claimed that it was impossible to make delivery on account of the scarcity of cars and for other reasons. In an action for breach of the contract, where the defense was that the plaintiff merely had an option to purchase the 44 cars, and, being under no absolute undertaking to purchase it, the contract was lacking in mutuality, held, that the order, acceptance, and correspondence with reference thereto showed mutual promises, each constituting a valid consideration for the other, and amounting to a contract for the sale of the entire 50 cars.

Appeal from Circuit Court, Jackson County; W. B. Teasdale, Judge.

Action by Henry Eaton and another against the Wear Coal Company. From a judgment for defendant, plaintiffs appeal. Reversed and remanded.

O. T. Hamlin and Rust & Campbell, for appellants. Francis C. Downey, for respondent.

JOHNSON, J.

Action to recover damages resulting from the alleged breach of a contract for the sale of personal property. A jury was waived and the learned trial judge, after hearing the evidence, entered judgment for defendant, from which this appeal is prosecuted by plaintiff.

In the petition, after stating that plaintiff the Springfield Coal, Ice & Transfer Company is a corporation engaged in the business of dealer in coal in the city of Springfield, that plaintiff Henry Eaton is president of said corporation, and that defendant also is a corporation engaged in the same business in Kansas City, plaintiffs allege: "That on September 23, 1902, plaintiffs purchased from defendant corporation at Springfield, Mo., 50 cars of deep shaft screened lump coal at the sum and price of $2 per ton f. o. b. at the coal mines of defendant in Weir City, state of Kansas. That said purchase was made by plaintiffs with the duly authorized agent of defendant corporation, to wit, J. W. Fisher, who was then and there the salesman for said defendant corporation, said sale and contract being witnessed by a written agreement signed by said agent, which is in words and figures as follows: `September 23, 1902. Please ship to Henry Eaton, Pres. at Springfield, via Frisco Railway, three cars deep shaft shaker screened coal at once at $2.00. Three cars deep shaft shaker screened coal Monday at $2.00. Swan preferred, book fifty cars lump coal in all. [Signed] J. W. Fisher, Salesman. The above order is not binding until accepted in writing by the general office. Confirming telegram of this date.' Said order was at said time delivered to the defendant, and is now in its possession, and the said sale was thereafter, to wit, on the 24th day of September, 1902, accepted in writing by defendant. That the defendant corporation in accordance with said contract and in recognition thereof furnished plaintiff six cars of coal which was received and accepted by it, and that after furnishing the said six cars defendant corporation refused, neglected, and wholly failed to furnish any more, or in any way fulfill, carry out, or comply with said contract, though frequently requested by plaintiff so to do." In the answer is included a general denial, a specific denial of the existence of the contract alleged in the petition, the plea that Henry Eaton has no interest in the cause of action alleged, and therefore should not be included as a party plaintiff, and the further plea that the contract alleged in the petition is wanting in mutuality, and therefore is void in law and in fact. In addition, a counterclaim is pleaded, but the questions presented for our determination do not call for its consideration. The reply filed by plaintiff is a general denial.

From the evidence offered by plaintiff at the trial it appears that Mr. Fisher, a traveling salesman employed by defendant, received from Mr. Eaton, as president of the plaintiff corporation, an oral order which he transmitted in writing to his principal. This order is correctly stated in the petition, and, by its terms, defendant did not become bound to fill it until it was accepted "by the general office" of defendant. On the day following the giving of the order (September 24th) defendant, by the hand of its general sales agent at its general office in Kansas City, mailed to plaintiff the following letter of acceptance, which was received by plaintiff in due course: "We are in receipt of your order of the 23d, given our Mr. Fisher, for 50 cars southern Kansas lump; three cars to be shipped at once, and three cars the early part of next week; the balance to be shipped as you may direct, price net to us, $2.00 per ton f. o. b. mines. The order has been so entered, and we will endeavor to give you early shipment. There is a heavy demand for coal at present, and car supply is limited indeed, but we will make special effort to take care of your order, and when you wish additional shipments on the 50 car order at above prices please advise us, and we will endeavor to give you prompt service. Thanking you for favoring us in this matter, we are, yours truly," etc. The three cars for immediate shipment and the three to be shipped the Monday following were duly delivered by defendant and accepted by plaintiff, and this controversy involves the question of defendant's obligation to deliver on the subsequent requests of plaintiff the remaining 44 cars mentioned in the order.

Shortly after the order was taken the price of coal advanced. Plaintiff, from time to time, insisted on the delivery of the 44 cars, but defendant failed to deliver any of them, and ultimately plaintiff was compelled to go into the market and buy coal at a higher price than that provided in the order. Plaintiff seeks to recover, as damages, the difference between the contract price of the 44 cars of coal and the market value thereof at the time it should have been delivered. Defendant objected to the reception in evidence of any of the correspondence between the parties relating to the repeated requests made by plaintiff for the delivery of the 44 cars, on the ground that, as the contract pleaded in the petition on its face shows that defendant was under no legal obligation to deliver any other cars than the six it did deliver, the petition fails to state a cause of action. The learned trial judge admitted some of the letters offered, but later adopted the view of defendant with reference to the sufficiency of the facts stated in the petition to constitute a cause of action, and refused to admit in evidence the remaining letters comprising the correspondence. Plaintiff thereupon offered to amend the petition, but the court held that the infirmity should not be regarded as consisting of a mere defective statement of a cause of action, but of a failure to show the existence of any cause of action at all, and refused to permit the amendment. The correspondence offered, which we deem to be material to the questions before us, consists of the following letters: From plaintiff to defendant October 8, 1902: "Please rush my order for lump coal as I am running short." From defendant to plaintiff October 10, 1902: "We have your favor 8th requesting us to hurry shipment on your order for lump coal. We wish to advise that we are doing all we can to take care of your orders. We are considerably behind on our orders, but will let a car or two go forward at the earliest possible date. The last car we shipped you was on October 1st. Our car supply is very limited and the railroad company is confiscating our coal in transit daily. This accounts for conditions." From defendant to plaintiff October 27th: "We are just in receipt of a communication from our Mr. Fisher requesting us to make special effort to give you some coal on the order which you gave us some time since, and we wish to assure you that we are doing everything in our power to take care of...