Heffernan v. Neumond

• Decision Date: 11 February 1918
• Docket Number: No. 14894.,14894.
• Citation: 201 S.W. 645,198 Mo. App. 667
• Parties: HEFFERNAN v. NEUMOND et al.
• Court: Missouri Court of Appeals

201 S.W. 645

198 Mo. App. 667

HEFFERNAN v. NEUMOND et al.

No. 14894.

St. Louis Court of Appeals. Missouri.

February 11, 1918.

Rehearing Denied March 20, 1918.

Appeal from St. Louis Circuit Court; Leo S. Rassieur, Judge.

Action by J. F. Heffernan, trading as the United States Sugar Feed Company, against Karl Neumond and others. From a judgment for plaintiff, defendants appeal. Affirmed.

Greensfelder & Levi, of St. Louis, for appellants. Abbott & Edwards, of St. Louis, for respondent.

ALLEN, J.

This is an action to recover for the breach of a written contract upon which, it is alleged, defendants became liable to plaintiff by assuming the same and agreeing to perform the obligations of the other party thereto. It is unnecessary to specially notice the pleadings. The petition is in the usual form. The defenses set up and relied upon will be noticed in the course of the opinion, so far as may appear necessary to a disposition of the appeal. The trial below, before the court and a jury, resulted in a verdict and judgment for plaintiff in the sum of $5,440, with interest thereon, aggregating in all $6,110.93; and the case is here on defendants' appeal.

Plaintiff, a resident of Milwaukee, Wis., was engaged in selling "mixed feed" for stock, which he shipped into various states. He had no mill or plant, but contracted in advance with others to supply the product with which to fill the contracts entered into by him with his customers. On June 17, 1912, one Goeke and one Dickinson, copartners doing business as F. W. Goeke & Co. (hereinafter referred to as "Goeke & Co.") were engaged in operating a certain mill or plant in the city of St. Louis, and on that day they entered into a written contract with plaintiff as follows:

"F. W. Goeke & Co., St. Louis, Mo., agrees to sell United States Sugar Feed, Milwaukee, Wis., Co., one hundred and fifty (150), 400-100 lb. sacks each, feed, to be shipped as follows:

                        5 cars June           30 cars October
                       15  "   July           20  "   November
                       30  "   August         20  "   December
                       30  "   September
                

as per following formula per ton:

                          1000 lbs. elevator goods
                           250 lbs. cotton seed meal
                           300 lbs. molasses
                           350 lbs. peat or humus
                           100 lbs. grain screenings
                

ground and dried as per last year. Protein to be 13 to 14%, fat 2 to 3%, fibre 12%.

"Directions for June immediate, for July by July 15th, August, September, October by the 10th of each month, and November by November 1st and December by the 10th.

"Sight drafts to be paid on demand, bills lading attached. Price $19.50 per ton New York rate points. F. W. Goeke & Co. U. S. Sugar Feed Co., per J. F. Heffernan."

On or about July 2, 1912, the firm of Goeke & Co. sold its business, trade, and good will, etc., to the defendants, Karl Neumond, Eugene Neumond, and one Eisemann, copartners doing business under the firm name of "K. & Neumond"; and as a part and parcel of the written contract between Goeke & Co. and these defendants, whereby such sale was effectuated, the defendants agreed to carry out all contracts of Goeke & Co. of such nature as is the contract sued upon. On July 16, 1912, the defendants notified plaintiff they had acquired the plant and business " of Goeke & Co., and that they would continue the business and would carry out all contracts made by the latter company; and to this plaintiff replied that he assumed that defendants were "responsible people," and that he would look to them to carry out the contract.

It appears that 5 carloads of the feed were shipped by Goeke & Co. in June, 1912, as called for by the contract, and that of the 15 carloads which, by the terms of the contract, were to be shipped in July, 9 were delivered, but on July 28, 1912, defendants' mill was destroyed by fire, and that no further deliveries were made under the contract. On the day following the destruction of the mill defendants notified plaintiff thereof saying that it would be impossible to furnish ally more feed at that time. On August 1, 1912, defendants wrote a letter to plaintiff saying:

"We beg to state that we will not ship any more feed against the contract made on June 17th."

It appears that when the last-mentioned letter was written plaintiff was en route to the city of St. Louis, where he arrived on the evening of August 1st. On the following day a meeting was held in defendants' office at which plaintiff, his counsel, defendant Eisemann, and defendants' counsel were present. Plaintiff requested that the feed be furnished in accordance with the contract, but was told that defendants would not furnish it. It is said that defendant Eisemann suggested that plaintiff "go out and buy the feed," and that plaintiff thereupon gave defendant the names of the only "concerns" operating mills, five in number, that he thought would be able to "turn out" feed of this general character in quantities called for by the contract. According to the testimony of both plaintiff and defendant Eisemann, it was agreed that plaintiff would visit these five mills, located in different cities, with the view of obtaining the feed at the lowest possible price, and that defendants, on their part, would likewise make efforts to secure a contract for the furnishing of the feed. It appears that plaintiff visited all of the mills mentioned, and—defendants having obtained no results in the meantime—finally secured a contract from the American Milling Company to manufacture and furnish the desired quantity of feed at $21.50 per ton. The feed thus contracted for contained no "humus," as did that called for by the contract sued upon. The evidence is to the effect that plaintiff was unable to obtain a feed containing humus, but that the feed which plaintiff thus contracted for and obtained (though demanding a higher price in the market generally) was secured at the same price as if humus had been used therein.

Such further facts as may appear to be pertinent to questions discussed will be stated in the course of the opinion.

I. It is argued that the trial court erred in receiving the contract in evidence over defendants' objections. This assignment of error proceeds upon the theory that the contract was unilateral, lacking mutuality, and therefore unenforceable. But this view is obviously unsound. This contract provides for the sale by Goeke & Co. to plaintiff of a certain definite quantity of mixed feed. Though the contract does not, in explicit words, recite that plaintiff agrees to purchase and pay for the same, this is clearly implied by the acceptance of the contract by plaintiff through the signing of his name thereto. Such was manifestly the intention of the parties. See Lewis v. Ins. Co., 61 Mo. 534, loc. cit. 538; 6 R. C. L. 659. And if the contract could be said to have been originally deficient in this respect (which we do not concede), the subsequent correspondence between the parties, and the part performance of the contract according to its terms, sufficed to render the contract mutually binding and enforceable. Laclede Const. Co. v. Tudor Iron Works, 169 Mo. 137, 69 S. W. 384; Eaton v. Coal Co., 125 Mo. App. 194, 101 S W. 1140. The case is not one falling within the doctrine expounded in Cold Blast Transportation Co. v. Bolt & Nut Co., 114 Fed. 77, 52 C. C. A. 25, 57 L. R. A. 596, a leading case, followed by us in the recent case of Brown Paper Box Co. v. Mercantile Co., 190 Mo. App. 584, 176 S. W. 251.

II. The contention that the destruction of the mill by fire excused further performance of the contract under the circumstances is obviously without merit. Nor did the court err in rejecting testimony proffered by defendant with the view of showing the existence of a custom, "in the trade," to excuse the manufacturer in such cases where his mill is destroyed by fire. The contract is absolute upon its face, binding Goeke & Co. to furnish the material in question. "If the party entering into a contract of this sort desires to protect himself against contingencies, it is incumbent on him to express the contingency in his contract; and if he fails to do this, in the absence of fraud or mistake, he cannot show a custom to the effect that his absolute written contract is not what it reads, but only a conditional engagement." See Covington v. Kanawha Coal Co., 121 Ky. 681, 89 S. W. 1126, 3 L. R. A. (N. S.) 248, 123 Am. St. Rep. 219, 12 Ann. Cas. 311; State v. Public Service Com., 189 S. W. loc. cit. 379. It is not a case where the subject-matter of the contract went out of existence, through no fault of the contracting party, rendering the contract incapable of performance. It cannot be said that these parties contracted upon condition that Goeke & Co.'s mill remain in existence; and consequently" the doctrine which appellants invoke (see St. Joseph Hay & Feed Co. v. Brewster, 195 S. W. 71) has here no application.

III. A further assignment of error, discussed at length, with the citation of numerous authorities, is that the court erred in overruling the demurrer to the evidence interposed by defendants at the close of the entire case, for the reason that plaintiff was shown to have "aided in and insisted upon an illegal method in the performance and execution of the agreement sued upon," and hence "cannot compel the enforcement of the contract." This has reference to the stamping and tagging of the bags containing the feed shipped under the contract, by which, it is said, the pure food laws, in force in the jurisdictions where the product was sold, were violated.

The written agreement makes no provision concerning the matter of bagging or tagging the goods, and there was no arrangement regarding this at the time of the execution of the contract. The bags contained in the 5 cars shipped in June, the only cars shipped by Goeke & Co. under the contract, bore tags reciting that the feed contained 15 per cent. to 16 per cent. protein, 3 per cent. fat, and 12 per...