Eyler v. Edina Light Co.

• Decision Date: 07 February 1922
• Docket Number: No. 16916.,16916.
• Citation: 237 S.W. 545
• Parties: EYLER v. EDINA LIGHT CO.
• Court: Missouri Court of Appeals

237 S.W. 545

EYLER v. EDINA LIGHT CO.

No. 16916.

St. Louis Court of Appeals. Missouri.

February 7, 1922.

Appeal from Circuit Court, Knox County; James A. Cooley, Judge.

"Not to be officially published."

Action by Louis Eyler against the Edina Light Company to recover damages for breach of contract. Judgment for plaintiff, and defendant appeals. Affirmed.

Frisby H. McCullough, of Edina, for appellant.

Stewart & Stewart, of Edina, for respondent.

DAUES, J.

This is an action for damages for breach of contract. The trial, by the court and jury, in the circuit court of Knox county, resulted in a verdict and judgment for plaintiff in the sum of $389.60. Defendant appeals.

The petition alleges that plaintiff entered into an oral contract with the defendant on March 20, 1919, whereby plaintiff was to buy from defendant, and defendant was to sell to plaintiff, from April 1 to October 1, 1919, "at the agreed price of 40 cents per hundred pounds, all the ice that was necessary and that would be required to supply all plaintiff's customers in the city of Edina, and that plaintiff would be furnished all the ice necessary for his customers each day before any other persons were to receive ice from the ice plant." It is further alleged that plaintiff was ready and willing to comply with his contract, and that defendant failed and refused to furnish the ice necessary for the needs, requirements, and demands of plaintiff's customers. The date of the breach on the part of defendant is given as July 25, 1919. The damages were laid at $1,140.

Defendant's answer denied that it entered into the contract pleaded in the petition, but alleges that defendant entered into an agreement with plaintiff for the sale to him of ice at the rate of 40 cents per hundred pounds for plaintiff's trade in the city of Edina; that the ice was to be sold by plaintiff at a margin, above the purchase price, of 10 cents per hundred pounds, between said dates of April 1 and October 1, 1919, and that if the price to the trade was raised, the additional profit should be divided between plaintiff and defendant. The answer alleges a full performance of said contract by defendant, and charges a breach of same by the plaintiff in refusing to accept ice and declining to continue the work of delivery after July 25, 1919, and, further, by refusing to divide profits after the price of ice was raised. A counterclaim for ice furnished plaintiff in the sum of $66.40 is also pleaded. The reply admits the correctness of defendant's counterclaim, denies the other allegations of the answer, and prays judgment for the balance, to wit $1,073.00.

Plaintiff's own testimony closely followed the allegations of the petition. It is, in effect, that he entered into the verbal contract alleged in the petition with defendant's agent, Hunter, by which it was agreed that defendant, operating an electric light plant in the city of Edina and being engaged in the manufacture of artificial ice, was to furnish plaintiff all the ice that was necessary and that would be required to supply all the customers that plaintiff was able to secure in the city of Edina, and that he was to be furnished all the ice necessary for his customers each day before any other persons were to receive any ice from the plant, for and during the term mentioned.

Plaintiff testified that he secured customers sufficient to require about 2½ to 3 tons of ice per day; that he purchased a team and wagon and hired a man with which to carry out his part of the contract; that he began buying and delivering ice under said agreement and sold coupon books to his customers which were paid for in cash in advance, and that he agreed with these and other customers to deliver ice promptly at stated times; that in accordance with the agreement plaintiff payed for the ice received at the contract price of 40 cents per hundred pounds at the end of each week; that the defendant soon after entering into the agreement began selling ice to the general trade in the city of Edina to the exclusion of plaintiff, so that not sufficient ice was afforded plaintiff for his use for his customers; that defendant sold by truck and wagonload to other towns in the vicinity of Edina, and that such sales were made by defendant before plaintiff was allowed sufficient ice for his customers; that after several attempts by plaintiff to secure the ice under the terms of his contract without avail, and being unable to receive ice in any substantial or sufficient quantities, he was unable to carry out his part of the contract and was compelled to entirely abandon the ice business.

Plaintiff further testified that it was agreed between the parties that defendant should have the right to sell ice at the plant to outsiders only after plaintiff had received each day all the ice necessary to supply his city customers; that the defendant manufactured enough ice each day during the time mentioned to supply plaintiff, but that defendant sold the ice to other customers at greater prices than was to be paid by plaintiff under his contract, thus reducing the supply of ice to plaintiff to such an extent that plaintiff could not carry on the ice delivery business as was contemplated by the contract price. Evidence for plaintiff also shows that on Saturday, July 26, Monday, July 28, and Tuesday, July 29, 1919, he...