Fuller v. Presnell

• Decision Date: 18 June 1921
• Docket Number: No. 2855.,2855.
• Citation: 233 S.W. 502
• Parties: FULLER v. PRESNELL
• Court: Missouri Court of Appeals

233 S.W. 502

FULLER v. PRESNELL

No. 2855.

Springfield Court of Appeals. Missouri.

June 18, 1921.

Rehearing Denied August 9, 1921.

Appeal from Circuit Court, Bollinger County; Peter H. Huck, Judge.

Action by Oscar Fuller against Charles E. Presnell. Judgment for plaintiff, and defendant appeals. Affirmed on conditions.

Chas. Revelle, of St. Louis, Rush Limbaugh, of Cape Girardeau, and Wm. M. Morgan, of Marble Hill, for appellant.

Homer F. Williams, of Marble Hill, and Davis & Davis, of Tredericktown, for respondent.

COX, P. J.

Action for damages for breach of contract for sale of lumber. Judgment for plaintiff for $1,710, and defendant appealed.

The contract is evidenced by the following writing signed by the defendant:

                                              "9/14/19
                

"Received of Oscar Fuller two hundred fifty dollars ($250.00) being part payment from one hundred to one hundred fifty thousand feet of oak lumber to be delivered at Laflin, Mo., by January 1, 1920, at $30.00 per thousand for 8 foot and $35.00 per thousand for standard lengths. Same to grade No. 2 common and better and to be inspected at Laflin.

                                      "Chas. E. Presnell."
                

The answer admitted defendant signed the receipt above; then pleaded fraud by plaintiff's agent in this, that defendant was ignorant of the meaning of the words "same to grade No. 2 common and better," and plaintiff's agent represented to him that these meant the same as "mill run," or the entire output of defendant's mill; that when defendant delivered a certain part of the lumber, he then learned for the first time that these words meant a certain grade of lumber, and therefore he could not deliver under this contract the entire output of his mill; that on learning of that fact he complained to plaintiff's agent, and that they then modified the contract by mutual consent so that defendant could only be required to deliver such quantity of oak lumber grading No. 2 common and better as he might be reasonably able to cut and deliver; and that he complied with the contract as modified, but plaintiff refused to inspect and accept the lumber.

The evidence shows: That the lumber was not cut at the time the contract was signed. Later defendant sawed and had ready for delivery at Laflin a part of the lumber. Plaintiff's agent inspected and accepted one carload at that time, but culled out more than defendant thought he should, and defendant testified that he complained of the culling, and stated that, if it was to be culled that way, he would not have enough lumber to fill his contract. That plaintiff's `agent then stated "that he would just take what had, and that would settle it." It was on this conversation that defendant based his claim of a modification of the contract.

Defendant testified that plaintiff received 19,000 feet, and that he had 22,003 or 23,000 feet more ready but could not get plaintiff's agent to inspect and receive it, though he made frequent requests for him to do so, and finally, on February 7, 1920, he sold this lumber to another party, and gave notice to plaintiff's agent on February 9th that he would not furnish any more to plaintiff. Defendant also testified that he at no time had 100,000 feet of lumber, including what he had delivered, on hand. The evidence shows that both parties recognized the contract as still in force after January 1, 1920, and up to February 7th, when defendant sold to another party.

At the close of plaintiff's testimony, and again at the close of all the testimony, defendant filed a demurrer to the evidence, which was overruled. Defendant contends that a demurrer to plaintiff's testimony should have been sustained, because the contract was void for uncertainty as to the quantity and kinds of lumber contracted for, and because there was no proof of any damage to plaintiff. Also that the demurrer at the close of all the testimony should have been sustained for the same reasons, and for the further reason that defendant's testimony as to a modification of the contract was not denied.

It is a familiar rule of construction of contracts that that is certain which can be made certain. Applying this rule, it has been held that when the exact amount of each kind of goods to be furnished under a contract is not specifically set out, yet if the kind or character of goods to be furnished is described with certainty and the minimum or total amount to be furnished is specified, then in that case the seller may make his own selection as to the amount of each kind he will furnish, and uncle moss circumstances he cannot be heard to say that the contract is void for uncertainty. American Hardwood Lbr. Co. v. Dent, 151 Mo. App. 614, 132 S. W. 320; American Hardwood Lbr. Co. v. Dent, 164 Mo. App. 442, 144 S. W. 1198.

In this case the minimum amount to be furnished was 100,000 feet and the maximum 150,000 feet. The kind was oak lumber to grade No. 2 common and better, and 630 per 1,000 feet to be paid for 8-foot lengths, and 935 per 1,000 for standard lengths. It was to be delivered at Laflin, Mo., by January 1, 1920. The only thing not definitely provided in this contract was the amount of 8-foot lengths and the amount of standard lengths that were to be furnished. We hold, as we did in the case cited above, that this gave the defendant the right to select the amount of each kind of the different lengths he would furnish, and with that right resting in him he had it in his power to comply with the terms of this contract as far as that provision is concerned, and the contract was a valid and binding contract.

It is next contended that defendant's testimony that the contract was modified was not denied, and for that reason the demurrer at the close of all the testimony should have been sustained. We do not agree with this contention. If there were a modification of the contract, that was a matter of defense, and put the burden on defendant to prove it, and even if what testimony he offered on that question was not denied, yet that testimony, being oral and not coming from plaintiff, it was still for the jury to say whether or not the testimony established the modification claimed. In this case, that issue was submitted to the jury on instructions asked by defendant, and the jury found against him, and the trial court permitted the verdict to stand, and that is binding on us, even if it be conceded that the defense of a modification of the contract was available to defendant in this case.

Objection is made to instruction No. 1 for plaintiff on the ground that it construed the contract to mean that defendant was required to furnish at least 100,000 feet of oak lumber of standard lengths, while the contract permitted him to furnish lumber of 8foot length. The instruction is somewhat ambiguous, and if there were any conflict in the testimony as to the lengths furnished, it would be misleading and erroneous, but there is no conflict on that question. The parties never had any disagreement about the length of the lumber, and we do not think it possible that the jury in this case even thought of the question of whether the lumber delivered, or offered to be delivered, by defendant was of any...