Grafeman Dairy Company v. St. Louis Dairy Company

• Decision Date: 11 November 1902
• Citation: 70 S.W. 390,96 Mo.App. 495
• Parties: GRAFEMAN DAIRY COMPANY, Appellant, v. ST. LOUIS DAIRY COMPANY, Respondent
• Court: Missouri Court of Appeals

70 S.W. 390

96 Mo.App. 495

GRAFEMAN DAIRY COMPANY, Appellant, v. ST. LOUIS DAIRY COMPANY, Respondent

Court of Appeals of Missouri, St. Louis

November 11, 1902

Appeal from St. Louis City Circuit Court.--Hon. William Zachritz Judge.

AFFIRMED.

Judgment affirmed.

E. T. & C. B. Allen for appellant.

(1) Defendant renounced the contract, and plaintiff's right of action for profits lost, accrued at once. Berthold v Co., 165 Mo. 280; Roehm v. Horst, 178 U.S. 1; Chapman v. Railroad, 146 Mo. 494; Gabriel v Co., 57 Mo.App. 526. (2) A vendee's right to rescind the whole contract upon the failure of the vendor to properly deliver one installment, is waived by having accepted and paid for previous installments of the same kind. Scott v. Co., 89 Pa. St. 231; Morgan v. McKee, 77 Pa. St. 228; Cohen v. Platt, 69 N.Y. 348. (3) Rescission or renunciation of a contract is an affirmative defense, and the burden of proof is on defendant. Riggins v. Railroad, 73 Mo. 598; Brown v. Weldon, 27 Mo.App. 260; Reynolds v. Reynolds, 45 Mo.App. 628. (4) The default by one party in making deliveries or payment will not release the other party from his duty to make the other deliveries or payments stipulated in the contract "unless the conduct of the party in default be such as to evince an intention to abandon the contract or a design to no longer be bound by its terms." West v. Bechtel, 51 L. R. A. 791; Worthington v. Given, 43 L. R. A. 312; Sawyer v. Railroad, 22 Wis. 402; Meyer v. Wheeler, 65 Iowa 396.

A. & J. F. Lee and Geo. R. Lockwood for respondent.

(1) Defendant had a right to reject milk that did not come up to the standard of the alleged contract. Calhoun v. Paule, 26 Mo.App. 274; Enterprise Soap Works v. Sayers, 55 Mo.App. 15. (2) The denials of defendant's answer and its special plea of a rescission of the contract were not inconsistent. Brinkman v. Hunter, 73 Mo. 172; Lowrey v. Danforth, 69 S.W. 39. (3) And by keeping and paying for milk not up to the contract, defendant did not estop itself from pleading such breach as sufficient ground for its refusal to take more milk from plaintiff. Nor do such facts estop defendant from rescinding the contract. Bispham's Equity (2 Ed.), sec. 280; Crane Co. v. Columbus Const. Co., 73 F. 984. (4) The court properly refused plaintiff's instruction which authorized a recovery for 12,928 gallons.

BLAND, P. J. Barclay and Goode, JJ., concur.

OPINION

BLAND, P. J.

--A short time prior to October 1, 1900, plaintiff company and defendant company, both corporations, entered into a verbal agreement whereby plaintiff agreed to make daily deliveries of condensed milk to the defendant, beginning on October 1, 1900, and to continue until October 1, 1901. This verbal agreement was acted on for some time by both parties when, at the request of J. P. Cabanne, president and general manager of the defendant, the agreement was reduced to writing by an officer of the plaintiff, after which it was executed by the plaintiff and in this form sent to Cabanne for the signature of his company. Cabanne received the written contract and retained it in his possession without objection but neglected to have it executed by his company. The contract in its written form is as follows:

"This agreement made this first day of October, 1900, between the St. Louis Dairy Company, a corporation of the State of Missouri, city of St. Louis, party of the first part; and the Grafeman Dairy Company, a corporation of the same state and city, party of the second part, witnesseth:

"First. That the party of the first part agrees to purchase all the condensed milk it uses from the party of the second part at the following prices: October, November, December, 1900, and January, February, March, 1901, fifty-two and one-half cents per gallon; April, May, June, July, August, September, 1901, forty-seven and one-half cents per gallon. The condensed milk to average ten and one-half per cent butter-fat, and to be of good flavor, uniform texture and proper solubility. The party of the first part agrees to place its orders for condensed milk no later than twenty-six hours before the required time of shipment, and to purchase no less than two cans nor more than ten cans on any one day.

"Second. It is mutually agreed that the party of the second part shall furnish the party of the first part, at the latter's option or request, either every day or any day during the life of this agreement, as many as fifteen cans of eight gallons each of whole, merchantable, fluid milk. The party of the first part agrees to furnish its own cans, and to give the party of the second part twenty-four hours notice before the time of shipment, of any such demand for milk. The party of the first part to pay for fluid milk delivered under this agreement the same price it pays its shippers. The party of the second part agrees in case of failure to deliver such milk as may be ordered on any day or days, to pay the party of the first part as liquidated damages therefor, the cost price here mentioned for every gallon of milk it fails to deliver under this agreement. The party of the first part to pay for all goods purchased under this agreement monthly, on or before the tenth day of the next month.

"The term of this agreement shall be for one year from the date first mentioned.

"In witness thereof the proper officers of the said parties have hereunto set their hands and affixed the seals of their respective companies this first day of October, 1900.

[Seal of Grafeman Dairy Co.]

"GRAFEMAN DAIRY COMPANY.

(Signed) "W. GRAFEMAN, Prest."

The action is for a breach of the contract on the part of defendant in this, that defendant refused, after April 23, 1901, to receive any milk from the plaintiff, and for the recovery of $ 313.50, the contract price for six hundred and sixty gallons of condensed milk delivered in the month of April, 1901.

The answer admitted that defendant owed plaintiff $ 313.50 for six hundred and sixty gallons of milk delivered in April, 1901, and made a tender of that amount with legal interest thereon and of the costs of the suit accrued at date of the tender; denied that the milk was furnished on the contract as alleged by plaintiff and alleged that there was no agreement that plaintiff should furnish defendant milk except as ordered from time to time by defendant and that it was particularly understood that whenever defendant should order condensed milk it should average ten and one-half per cent butter-fat, be of good flavor, uniform texture and proper solubility; that the condensed milk furnished by plaintiff in April was to the knowledge of plaintiff not of the percentage of butterfat agreed upon, not of good flavor, uniform in texture, nor of the proper solubility, but that defendant elected to receive and retain all condensed milk delivered to it by plaintiff under the agreement in the month of April, 1901. But on account of the inferiority of the milk, defendant, about April 22, notified plaintiff not to deliver it any more condensed milk under the agreement and that it would not receive any more of its milk.

The reply admitted that the defendant deposited with the clerk of the circuit court for the use of plaintiff $ 313.50 and $ 11.25, interest, and $ 61.25 in payment of the costs which had accrued, and admitted that on or about April 22, 1901; defendant had notified it not to furnish any more condensed milk.

A jury was waived and the issues were submitted to the court, who, after hearing the evidence and passing on declarations of law asked by plaintiff, found the issues for plaintiff and assessed its damages at $ 334.75, but adjudged all the costs against plaintiff and awarded execution therefor.

A timely motion for new trial was filed by plaintiff which the court denied and plaintiff appealed.

The evidence shows that the written contract was prepared by plaintiff's officer at the request of J. P. Cabanne, defendant's president and general manager, that it was duly signed by plaintiff, forwarded to Cabanne, who received and retained it in his possession without objection and acted upon it and exacted of plaintiff a compliance with its terms until April 22, 1901, when Cabanne notified plaintiff that defendant would not receive any more condensed milk under the contract. In this state of the evidence the defendant is estopped by its conduct to say that the writing is not its contract and it is as much bound by its terms as if it had formally and solemnly executed it.

The evidence tends to show that, had plaintiff been permitted to deliver to defendant the condensed milk agreed to be furnished from April 22 to October 1, 1901, plaintiff's profits would have been from $ 800 to $ 1,292.80.

About three-fifths of the condensed milk furnished defendant by plaintiff was used by defendant for the manufacture of ice cream. Plaintiff was fully informed of the purpose for which defendant wished to use the milk when the contract was first entered into.

A. B Clark, who superintended the manufacture of ice cream at defe...