Ellis Gray Mill. Co. v. Sheppard

• Decision Date: 13 June 1949
• Docket Number: 41346
• Parties: Ellis Gray Milling Company, a partnership composed of Ellis Gray and Marie B. Gray, Appellants, v. Frank M. Sheppard and William W. Sheppard, doing business under the fictitious name of the Pike Grain & Securities Company, Respondents
• Court: Missouri Supreme Court

222 S.W.2d 742

359 Mo. 505

Ellis Gray Milling Company, a partnership composed of Ellis Gray and Marie B. Gray, Appellants, v. Frank M. Sheppard and William W. Sheppard, doing business under the fictitious name of the Pike Grain & Securities Company, Respondents

No. 41346

Supreme Court of Missouri

June 13, 1949

Rehearing Denied July 30, 1949.

Appeal from Pike Circuit Court; Hon. Theodore Bruere Judge.

Reversed and remanded (with directions).

SYLLABUS

Defendants agreed to make monthly shipments of corn at a fixed market price. When the O.P.A. ceiling prices were increased, plaintiffs accepted under protest several shipments at correspondingly increased prices. When the ceiling prices were removed, defendants refused to make the final shipments at the greatly increased market price, and plaintiffs purchased in the open market. The contract was not modified as to the final shipments by the parties or by government order, and the doctrine of frustration through economic conditions does not apply. The judgment having been for defendants in a jury waived case, the Supreme Court directs a judgment for plaintiffs.

Warren H. May and James D. Clemens for appellants.

(1) This case being heard by the court without a jury, is reviewable here under the Code as a suit in equity. Dye v. School Dist., etc., 195 S.W.2d 874; Gray v. Kansas City, 194 S.W.2d 207; Sec. 847.114 (d), R.S. 1939. (2) The court erred in holding that the contract herein was affected by the change in OPA ceiling price. The Emergency Price Control Act of 1942 provided only for a maximum price to be established by regulation, and did not prohibit any sale at a lesser price. Sec. 902, Emergency Price Control Act, Title 50, U.S. Code, 1946. (3) The court further erred in holding: "The intention of the plaintiff and defendants is clearly shown by the record that they modified the contract for 14 cars of corn at $ 1.22 1/2 per bushel by a subsequent arrangement based on the price of Omaha ceiling mentioned in the contract." For the reason that the asserted modifications only applied to the months of May and June, and that the remainder of the contract remained in force as to July. 17 C.J.S., p. 869; Menne v. Neumeister, 25 Mo.App. l.c. 305; Witkofski v. Daniels, 329 Pa. 452; Boardman v. Bubert, 155 N.E. 784, 325 Ill. 38; 55 C.J., sec. 223, p. 253. (4) The court erred in finding that the contract for shipment of the 2 cars for July was modified as to price, because the original contract was within the Statute of Frauds, and was not subject to parol modification. Sec. 3355, R.S. 1939; Miller v. Arnold, 51 S.W.2d 124; Roburt v. Holmes, 248 S.W. 646, 213 Mo.App. 195; Pratt v. Shreiber, 249 S.W. 449, 213 Mo.App. 268. (5) The court erred in finding that the contract for shipment of the 2 cars for July was modified as to price because such claimed modification was unsupported by any consideration and was nudum pactum. Mt. Vernon Co. v. Hirsch Co., 227 S.W. 67, 285 Mo. 669; Koslosky v. Block, 177 S.W. 1060, 191 Mo.App. 257; Dobbins v. Mortgage Co., 124 S.W.2d 1111, 343 Mo. 1001; Lingenfelder v. Wainwright Brewing Co., 103 Mo. 578, 15 S.W. 844; Brooman v. Burdette, 83 S.W.2d 95; Secs. 130-130A, Williston on Contracts, 1936 Ed. (6) The court erred in finding that the contract for shipment of the 2 cars for July was modified as to price, because such a finding is not supported by sufficient evidence. 17 C.J.S., Contracts, 588, 607; Davis v. Scovern, 130 Mo. 303, 32 S.W. 986.

A. J. Murphy, Jr., and F. D. Wilkins for respondents.

(1) This being a case tried upon the facts without a jury, this court is required to review the same upon both the law and the evidence as in suits of an equitable nature, having in mind that the judgment shall not be set aside unless clearly erroneous, and that due regard shall be given to the opportunity of the trial court to judge of the credibility of the witnesses. Sec. 114 (d) Laws 1943, p. 388; Mo. R.S.A. Sec. 847,114 (d); Landers v. Thompson, 205 S.W.2d 544; Vanderhoff v. Lawrence, 206 S.W.2d 569; In re Jamison's Estate, 202 S.W.2d 879; Mound City Finance Co. v. Frank, 199 S.W.2d 902; A.J. Meyers & Co. v. Schulte, 189 S.W.2d 183; Avellone v. John Weisert Tobacco Co., 213 S.W.2d 222. (2) This case was before the court, as the trier of the facts, and, in such case, the facts, as found by the trial court, where there is any evidence to support such findings, or reasonable deductions from the facts in evidence, are accepted by the appellate court as the facts in the case. There was ample evidence to justify the findings of the trial court Sample v. Bank of Poplar Bluff, 207 S.W.2d l.c. 55; State ex rel. Edie v. Shain, 152 S.W.2d 174, 348 Mo. 124; Vanderhoff v. Lawrence, 206 S.W.2d 569. (3) The trial court decided this case in defendant's favor and in reviewing same this court must assume that defendant's evidence was true. Conley v. Crown Coach Co., 159 S.W.2d 281, 348 Mo. 1243; Facendini v. Hillman, 298 S.W. 1073; Snip v. City of Lamar, 201 S.W.2d 790. (4) An executory contract may be rescinded or set aside by mutual agreement of the parties, and no other consideration is necessary. State ex rel. Presnell v. Cox, 250 S.W. 374; Mt. Vernon Car Mfg. Co. v. Hirsch Rolling Mill Co., 227 S.W. 67, 285 Mo. 669; Facendini v. Hillman, 298 S.W. 1073; Graves v. Merchants & Mechanics Mut. Fire Ins. Co., 139 S.W.2d 1039; Avellone v. John Weisert Tobacco Co., 213 S.W.2d 222. (5) Plaintiffs and defendants acted upon the contract as modified and abandoned the old contract, this was sufficient consideration for the modification. Mt. Vernon Car Mfg. Co. v. Hirsch Rolling Mill Co., 227 S.W. 67, 285 Mo. 669; Laritz v. King, 93 Mo. 513; Latham v. Douglas, 206 S.W. 392; Vrooman v. Burdette, 336 Mo. 1181, 83 S.W.2d 95. (6) The parties to a written contract may by oral agreement made after its execution change or modify its provisions and such modification may be shown by parol evidence. Davis v. Scovern, 130 Mo. 303; Shaffner v. Moore Shoe Co., 35 S.W.2d 935; McClure v. Wilson, 185 S.W.2d 878. (7) The issue of whether this contract was modified was questions of fact for the trial court, who had the opportunity to hear and observe the witnesses and he decided them against the plaintiffs, and judgment shall not be set aside unless clearly erroneous. Sec. 114 (d) Laws of Mo. 1943, p. 388; and cases cited under Point (1) of this brief; Carr v. Carroll, 178 S.W.2d 435; Creamer v. Bivert, 214 Mo. 473, 113 S.W. 1118; McClure v. Wilson, 185 S.W.2d 879. (8) Where party refusing to complete his contract does so by reason of some unforeseen and substantial difficulty in performance which was not known or anticipated by the parties when contract was entered into and which casts upon him an additional burden not contemplated by parties, and where opposite party, when faced with the other's refusal to proceed, thereupon promises to pay him an additional amount if he will complete his contract, which he agrees to do, such promise to pay the additional amount is supported by valid consideration. 12 Am. Jur., sec. 413, p. 992; 17 C.J.S., sec. 112, p. 467; Curry v. Boeckeler Lbr. Co., 224 Mo.App. 336, 27 S.W.2d 473; Liebreich v. Tyler State Bank & Trust Co., 100 S.W.2d 152; Watkins & Son, Inc., v. Carrig, 21 A.2d 591, 138 A.L.R. 131; Grand Trunk Western Ry. Co. v. H.W. Nelson Co., 116 F.2d 823; King v. Duluth M. & N.R. Co., 61 Minn. 482, 63 N.W. 1105; Evans v. Oregon & Wash. R. Co., 108 P. 1095, 28 L.R.A. (N.S.) 455; Sasso v. K.G. & G. Realty & Const. Co., 120 A. 158. (9) Frustration of the object or effect of the contract. Restatement of the Law on Contracts, A.L.I., sec. 288, pp. 426, 428.

OPINION

Ellison, J.

This is an action for $ 3453.66 damages for an alleged breach of a contract for the sale and delivery by defendants to plaintiffs in July, 1946, of the last two of fourteen cars of corn. The cause was tried in the circuit court of Pike county without a jury, and the judgment was for defendants. Plaintiffs appealed to the St. Louis Court of Appeals, where the judgment was affirmed. The opinion of that court is reported in 215 S.W.2d 57. On application of the plaintiffs-appellants the cause was transferred to this court.

The contract, made in September, 1945, was for the purchase of fourteen cars of corn to be delivered two cars each month for seven months, beginning in January and ending in July, 1946, at $ 1.22-1/2 per bushel, based on the then Omaha ceiling price, plus 1/30 cents per bushel per day for storage charges from January 1, 1946, on the last twelve cars. The defendants-respondents in turn contracted independently with a third party, the Omaha Elevator Company, to supply the corn. Shipments of the six cars for the first three months were duly made, and accepted by plaintiffs, at the contract price. Throughout the whole period of seven months the Office of Price Administration was fixing the ceiling prices on corn, and owing to the scarcity thereof, those prices prevailed generally.

In the fourth month, April, 1946, the Government raised the ceiling price 3 cents per bushel, and for May and June it was again raised 25 cents. The Emergency Price Control Act of 1942 expired as of June 30, Title 50, U.S.C.A. App. § 901(d) p. 194. All ceiling prices were removed, in consequence of which the price of such corn shot up to $ 2.35 per bushel. The appellants waived the first raise of 3 cents and accepted the two cars shipped for April. Under pressure of necessity they also accepted the four cars for May and June and paid the 25 cents raise. But when respondents early in July refused to ship the two cars of corn forthcoming that month at less than the then market price of $ 2.35 per bushel, appellants declined to accept it and later that month purchased on the open market one car at...