Halloway v. Mountain Grove Creamery Co.
| Citation | 228 S.W. 451,286 Mo. 489 |
| Parties | W. R. HALLOWAY, E. BOEGER and W. B. ROGERS, TRUSTEES OF THE STRAFFORD DAIRY ASSOCIATION, v. MOUNTAIN GROVE CREAMERY COMPANY, Appellant |
| Decision Date | 05 March 1921 |
| Court | Missouri Supreme Court |
Transferred from the Springfield Court of Appeals.
Reversed.
V. O Coltrane for appellants.
(1) The contract sued upon is unilateral and void for want of mutuality so far as it was executory. The Strafford Dairy Association was not obligated to furnish any certain or definite amount of cream. In fact, they do not agree to do anything. Campbell v. Handle Co., 117 Mo.App. 19; Hudson v. Browning, 264 Mo. 58; Iron & Rail Co v. Railroad, 148 Mo.App. 173; Jones v. Durgin, 16 Mo.App. 370. (2) Plaintiffs cannot recover in this action for the contract price, even upon the theory that the writing constituted a valid contract between the parties. Assuming the existence of such contract defendant fully performed up to the time it repudiated the agreement, and as to that part of the agreement which was executory it had a legal right to repudiate it by subjecting itself to a suit for damages. Thereafter, plaintiff could not perform and recover on the contract. One party to a contract has no right to proceed to execute it after he has been notified that the other party thereto has repudiated it. His remedy is an action for damages for the breach, and his duty is to minimize the damages, not to increase them by proceeding to perform the contract. Advertising Co. v. Wilson, 186 Mo.App. 498; Catalogue Co. v. Car Co., 120 Mo.App. 575; Frederick v. Willoughby, 136 Mo.App. 244; Printing Co. v. Cutlery Co., 143 Mo.App. 518. (3) After June 2, 1914, defendant did not accept cream or agree to pay for the same under the contract sued upon. This is not only shown by all of the evidence but plaintiffs' petition alleges that defendant "continued during the remainder of the term and life of said contract to repudiate the same." Plaintiffs are therefore estopped from claiming that defendant accepted this cream under this agreement. On the other hand, the evidence of plaintiffs as well as that of defendant shows that the defendant made a new proposition, namely, to submit prices from time to time that it was willing to pay, and also in addition to such prices to pay two cents commission. Prices were submitted by defendant to plaintiffs from time to time, the cream was shipped to plaintiffs, they knowing at the time that defendant was not intending to purchase under the contract sued on, defendant on each shipment paid for the cream upon the basis of these card prices, and plaintiffs accepted the money, knowing that defendant was intending by such payment to pay the full amount due. In addition to this plaintiffs accepted an entirely new term and benefit in defendant's second proposition, namely, the two cents commission per pound of butter fat. The controlling fact is not in dispute that they knowingly and deliberately accepted benefits accruing by reason of defendant paying the two cents commission. (a) One who accepts a benefit under an agreement "must adopt the whole of it, conforming with all of its provisions and renouncing every right inconsistent with them." Fox v. Windes, 127 Mo. 502; Beaver v. Bank, 177 Mo.App. 105; Sage v. Finney, 156 Mo.App. 30; Wood v. Trust Co., 265 Mo. 525. (b) Plaintiffs should not be allowed to accept the benefits and repudiate the burdens. Dry Goods Co. v. Bank, 81 Mo.App. 46; Willow Springs C. Co. v. Mountain Grove C. Co., 197 S.W. 916; Hamill v. Talbott, 81 Mo.App. 210. (4) Where parties have entered into a contract, even a written one, and afterwards a new or modified contract is made, the old contract is thereby abrogated and abandoned. The substitution of the new contract for the old one is a sufficient consideration. Carman v. Harrah, 182 Mo.App. 365; Garnhart v. Finney, 40 Mo. 463. (5) Plaintiffs of their own accord accepted the second proposition made to them by defendant and have taken the advantages which resulted to them by acting under the second proposition, having received the compensation which was to be paid under its terms. Having done this they are estopped from denying the validity of the substituted agreement, nor does the fact that in making this second contract the plaintiffs protested that they had rights under the first and that they were going to hold defendant to the first agreement, better their position. A party cannot avoid the legal consequences of his acts by protesting at the time he does them that he does not intend to subject himself to such consequences. United States v. Lamont, 155 U.S. 303, 39 Law Ed. 160; Cotton-Oil Co. v. Ashburn, 81 F. 331; Torry v. Hardy, 196 S.W. 1102. (6) Defendant had an absolute legal right to repudiate the contract. The undisputed evidence is that defendant did repudiate the contract and continued to refuse to recognize it. (a) We have the contract sued upon entirely abrogated and the defendant making a new proposition to the plaintiffs. The offer was that if plaintiffs would send their cream to defendant, defendant would pay therefor the same prices that it was paying at other stations, plus two cents commission. Plaintiff association accepted this offer by sending the cream in response to defendant's proposal and accepting the money that was tendered in payment therefor, and also accepted two cents per pound commission, an entirely new term in the agreement, and is holding, and not willing to give up, the benefits derived by reason of defendant's paying this commission. Leesley Bros. v. Fruit Co., 162 Mo.App. 195; Lungstrom v. German Ins. Co., 48 Mo. 204; Allen v. Chouteau, 102 Mo. 323. (b) There is no conflict in the testimony as to these overt acts of acceptance or asquiescence, no countervailing evidence and no impeachment of any witness. The facts stand admitted. Their legal effect alone remains, and that is a question for the court to decide and not for the jury. May v. Crawford, 150 Mo. 527. (c) Where the testimony given in behalf of plaintiff establishes the truth of the facts set up as new matter in the answer, and these facts are sufficient to preclude a recovery upon the part of plaintiff, it becomes the duty of the trial court, as a matter of law, to direct a verdict in favor of defendant. Torrey v. Hardy, 196 S.W. 1100. (7) The instructions given by the court are incorrect. School Board v. Hull, 72 Mo.App. 403; Lightfoot v. Hurd Co., 113 Mo.App. 612; Adams v. Helm, 55 Mo. 468; Coal Co. v. St. Louis, 145 Mo. 651.
L. L. Collins and Hamlin & Hamlin for respondent.
(1) Without conceding the contract at bar is unilateral, and whether it is or is not, does not enter into this case, because this contract was fully carried out by the respondent. Even should it be conceded that this is a unilateral contract, it does not follow at all that respondent after fully executing the same on its part should not recover, but on the contrary, after having executed it, it can recover. Typewriter Co. v. Realty Co., 220 Mo. 522; 6 R. C. L. p. 687, sec. 94. (2) Whether this contract be unilateral or not the conclusion is that a nude unilateral agreement, supported by a valid consideration because the promisee has performed, is enforceable, and for its breach the promisor must respond in damages. Williams v. Tiedemann, 6 Mo.App. 274. (3) Respondent delivered the goods, giving appellant to fully understand and know that respondent was expecting of it the price theretofore agreed upon and under these circumstances appellant received and accepted the commodity delivered to it. And the very act of appellant in receiving this butter fat knowing at the time that respondent expected the Elgin price therefor, and knowing at the time that respondent had refused to accept from it any sum less than the Elgin price, made itself liable to respondent for the Elgin price. Dove v. Fansler, 132 Mo.App. 669; Bahrenburg v. Fruit Co., 128 Mo.App. 526. (4) It cannot be disputed that had respondent received for its butter fat the price fixed in the written contract, then it would have received the amount sued for in addition to what it did actually receive, and not having received the amount sued for, it was entitled to a verdict for that amount, unless the amount it did receive was received in full for the butter fat sold and delivered by it to appellant, and this was a question for the jury. Bahrenburg v. Fruit Company, 128 Mo.App. 526; Perkins v. Headley, 49 Mo.App. 562; Dry Goods Co. v. Goss, 65 Mo.App. 55; Mfg. Co. v. Heinz, 120 Mo.App. 477. (5) Respondent by receiving checks from appellant from time to time, is not estopped to maintain this suit. No accord and satisfaction was created thereby. A creditor does not, by voluntarily accepting a part of what is due him, release the remainder. Perkins v. Headley, 49 Mo.App. 562.
SMALL, C. Brown and Ragland, CC., concur. Goode, J., not sitting.
Appeal from the Circuit Court of Greene County.
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:
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