Halloway v. Mountain Grove Creamery Co.

• Decision Date: 30 December 1920
• Docket Number: No. 21503.,21503.
• Citation: 228 S.W. 451,286 Mo. 489
• Parties: HALLOWAY et al. v. MOUNTAIN GROVE CREAMERY CO.
• Court: Missouri Supreme Court

228 S.W. 451

286 Mo. 489

HALLOWAY et al. v. MOUNTAIN GROVE CREAMERY CO.

No. 21503.

Supreme Court of Missouri, Division No. 1.

December 30, 1920.

Motion for Rehearing Denied March 5, 1921.

Appeal from Circuit Court, Greene County; Guy D. Kirby, Judge.

Action by W. R. Halloway and others against the Mountain Grove Creamery Company. From a judgment for plaintiffs, defendant appealed to the Springfield Court of Appeals, where judgment was affirmed. On motion for rehearing the case was certified to the Supreme Court. Judgment of circuit court reversed.

V. O. Coltrane, of Springfield, for appellant. L. L. Collins and Hamlin & Hamlin, all of Springfield, for respondents.

SMALL, C.

I. The plaintiffs are trustees of a voluntary association of dairymen, and the defendant is a corporation engaged in buying cream. The following agreement was executed by the parties:

                       "Mountain Grove, Mo., Mar. 7, 1914
                               "Contract
                

"Ozark Dairy Association, Strafford, Mo.— Gentlemen: We agree to pay the following price for your cream for one year, beginning the 1st day of April, 1914, and ending the 1st day of April, 1915: We will pay flat Elgin price f. o. b. Strafford for the entire year for all first-grade cream and three cents less for second-grade cream.

"Second-grade cream is cream testing below 25 per cent. individually or testing below 30 per cent, on composite test. Also all foamy, old cheesey and dirty cream with bad odor is to be classed as second-grade cream.

"All prices to be based on Elgin market, unless the Elgin board should be dissolved, in which case the price to be based on some other market mutually agreed upon by both parties. All payments to be based on your weights and tests. The shortage if over 1 per cent. may be deducted by us, when so proved short by our representative at your station on any regular receiving day.

"We further agree to furnish acid, cans for shipping and report sheets, and agree to pay for all cream as soon as possible after receiving report, and also agree to pay three cents per can drayage. All cream is to be bought on Tuesdays and Fridays as far as possible. We further agree if we contract with the organization at any other point at a higher price we will pay you the same.

                            "Mountain Grove Creamery Co
                                "Per H. W. Jensen, Pres
                            "Strafford Dairy Association
                                "By E. Boeger,
                                "By W. R. Halloway,
                                "By W. B. Rogers."
                

The petition, after pleading this agreement, alleged:

"That in accordance with said contract entered into as aforesaid with the defendant, the plaintiffs delivered to defendant a great amount of cream or butter fat, on different dates between the 1st day of April, 1914, and the 1st day of June, 1914, and the said defendant received said cream and paid for it in accordance with said contract, to wit, the prices fixed and paid for like cream at Elgin, Ill., up to said date; that on June 2, 1914, and long prior to the time for expiration of said contract, the defendant repudiated said contract and refused to pay plaintiffs the prices for their cream as by said contract provided and failed and refused to comply with the terms of said contract by paying plaintiffs for their cream the market price for such cream as fixed by the market at Elgin, Ill., and continued during the remainder of the term and life of: said contract to repudiate the same and refused to pay as in said contract provided, but continued to receive and accept during the life of said contract plaintiffs' cream or butter fat, but paid plaintiffs, on the same, prices therefor greatly less than the price for such cream fixed by the Elgin market, and paid plaintiffs prices fixed by defendant and not by the Elgin market, and, which prices so paid plaintiffs were greatly inferior to the prices agreed upon and specified in said contract and fixed by the Elgin market; that plaintiffs refused to abandon the terms of their said written contract with defendant, but fully carried out and fulfilled all their part of said contract and upon the date aforesaid, to wit, June 2, 1914, or shortly thereafter, plaintiffs notified defendant that they would continue during the life and term of said contract to furnish the cream as they by said contract had agreed to do and would expect and demand of defendant to fully comply with its part of said contract, but plaintiffs charge and aver that the defendant has wholly failed to comply with and carry out its part of said contract in this, to wit, by failing to pay plaintiffs at Strafford, Greene county, Mo., for their cream or butter fat so sold and delivered by them to defendant, the prices for such butter fat as specified in said contract and fixed by the Elgin market; that between the date of June 2, 1914, aforesaid, and April 1, 1915, the date of expiration of said contract, plaintiffs sold and delivered to defendant 24,967.6 pounds of butter fat; that the prices paid plaintiffs by defendant therefor was $1,643.11 less than plaintiffs should have been paid under the terms of said contract, and the prices fixed by said Elgin market * * *"—for which sum, with interest, plaintiffs prayed judgment.

The answer, after admitting `defendant denied liability on said agreement, was as follows:

"For another and further answer defendant states that for some time prior to and until on or about May 28, 1914, it had been purchasing cream from the Strafford Dairy Association, for which association plaintiffs bring this suit, on the basis of the Elgin, Ill., cream or butter fat market, and that said association was represented by one L. A. Webster in the collection and shipping of such cream, the collection of the money paid by defendant therefor, and in the correspondence connected with said business, that on or about said May 28, 1914, defendant notified said Webster and said association that this defendant would no longer purchase cream upon the basis of the Elgin market as it had been purchasing the name, but would put the Strafford Dairy Association upon the same basis as all other stations patronized by defendant, and that defendant would pay after said date for cream at Strafford the same rate that it was paying at other stations and would also pay two cents commission on each pound of butter fat purchased at said station; that thereafter defendant furnished said Strafford Dairy Association with quotations each week as to what it was paying that week for cream at other stations and what it would be willing to pay at Strafford, and all cream mentioned in plaintiffs' petition was furnished in response to said quotations and with the knowledge and under-standing that defendant was paying and would only pay the amounts mentioned in said quotations, and was accepted by defendant with the understanding that it was furnished upon the basis of such quotations; that defendant would not have accepted said cream at a higher price than mentioned in said quotations plus said commission; that each week thereafter defendant upon each shipment of cream paid said association upon the basis of said quotations in full for the amount received, and further paid said association two cents commission on each pound of butter fat, and said association accepted the same. Wherefore, defendant says that plaintiffs are not entitled to recover."

The reply traversed the new matter in the answer.

There was no dispute as to the material facts, which were, in substance, as follows: The defendant received and paid for all the cream delivered according to the price fixed in said agreement until about June 1, 1914, when defendant notified...