Hartman v. Frost-Trigg Lumber Co.

• Citation: 96 Mo. App. 288,70 S.W. 157
• Parties: HARTMAN v. FROST-TRIGG LUMBER CO.<SMALL><SUP>1</SUP></SMALL>
• Decision Date: 21 October 1902
• Court: Court of Appeal of Missouri (US)

70 S.W. 157

96 Mo. App. 288

HARTMAN v. FROST-TRIGG LUMBER CO.¹

Court of Appeals at St. Louis, Missouri.

October 21, 1902.

PLEADING—COUNTERCLAIM.

1. Plaintiff sued the defendant for a balance due on certain lumber. Defendant presented a counterclaim on account of plaintiff's failure to ship a portion of the lumber as agreed. At the trial, defendant introduced letters showing that, while the contract was being performed, defendant had requested plaintiff to delay shipment for a few days, and plaintiff did withhold further shipments, as requested, during those days. Held, that this was not a modification of the contract that precluded the defendant from recovering damages on his counterclaim on the ground that the alleged modification was not pleaded in the counterclaim.

(Syllabus by the Court.)

Appeal from St. Louis circuit court; H. D. Wood, Judge.

Action by F. H. Hartman against the Frost-Trigg Lumber Company. Judgment for plaintiff. Defendant appeals. Reversed.

Carter & Sager, for appellant. F. H. Sullivan, for respondent.

GOODE, J.

A point of practice is involved in this appeal, by reason of the court having excluded testimony offered by the defendant to sustain a counterclaim based on plaintiff's alleged failure to perform a certain contract, which ruling was made on the theory that the defendant itself, before offering the rejected testimony, had proven the contract was modified. Said contract was made by correspondence and telegrams between the parties in January, 1899, and provided for the sale by the Hartman Lumber Company, of Brookhaven, Miss., which seems to have been F. H. Hartman's business style, to the Frost-Trigg Lumber Company, of a bill of lumber at stipulated prices, and that shipments of lumber should commence at once, and be completed by or before the 15th day of April next ensuing. The lumber was to be shipped to Chicago to a contractor incorporated under the name of Wm. Goldie & Sons Company, to which the Frost-Trigg Lumber Company had contracted to furnish it. The latter company gave plaintiff this direction in regard to shipments, in a letter dated February 1st: "You had better ship this bill in rotation, beginning at the top, for that is about the order the timber will go into the building." The contract called for various kinds of lumber, of different dimensions, enumerated in an appended list, and that direction was for shipments according to the order of the listed items. After three cars had been shipped, to wit, March 28th, defendant wrote plaintiff a letter telling him not to ship any more lumber until further instructions were given, because the weather was so bad in Chicago that the contractor had been unable to complete the foundation of the building into which the lumber was to go, and there was no room about the building site to unload more lumber until that already received had been used. The letter concluded as follows: "The contractor seems to think that he will be ready for the timber by about the middle of April. We are very sorry to stop you from shipping, as we know how much inconvenience such a stop will cause you, but we are, in a measure, bound to obey our customers' instructions; and we hope you can see your way clear to withhold further shipments until the contractor instructs us to resume. Please acknowledge receipt of this letter, and inform us if this request will be complied with." Plaintiff answered this letter on the 30th day of March, and consented to delay further shipments as requested. On April 4th, defendant wrote the plaintiff that the contractor was ready for shipments to be resumed, as he had rented a vacant lot on which to unload the lumber as fast as it reached Chicago, and plaintiff was directed to begin shipping again. This action was brought by the plaintiff to recover an unpaid balance on the lumber ordered by the defendant, and defendant's counterclaim, with which we have to deal, seeks to recoup for plaintiff's failure to deliver 750 pieces of lumber, which it was compelled to buy elsewhere at a higher price than plaintiff was to furnish them for, in order to fill its contract with Wm. Goldie & Sons Company. The counterclaim pleaded the contract made in January, and alleged that said contract provided that plaintiff should ship said lumber at once, in car-load lots, of at least 1,200 feet to the car, and should complete the order on or before the 15th day of April, 1899; the lumber to be shipped to Wm. Goldie & Sons Company, at Chicago. Another material allegation of the counterclaim is as follows: "Defendant states that plaintiff failed to deliver seven hundred and fifty pieces of lumber within the time called for in said contract, to wit, April 15, 1899, or at any reasonable time thereafter, though repeatedly urged to do so, and that defendant, in order to fulfill its contract with said Wm. Goldie & Sons Company, of Chicago, Illinois, was forced to go into the market and buy said lumber elsewhere." At the trial, plaintiff's account was admitted to be correct by the defendant, and the latter, to sustain its counterclaim, introduced the correspondence above mentioned, and then offered to prove by its manager, Henry R. Asman, the nondelivery by the plaintiff of the 750 pieces of lumber mentioned in the...