Holloway v. Mountain Grove Creamery Co.
| Decision Date | 18 January 1919 |
| Docket Number | No. 2398.,2398. |
| Citation | 209 S.W. 325 |
| Parties | HOLLOWAY et al. v. MOUNTAIN GROVE CREAMERY CO. |
| Court | Missouri Court of Appeals |
Appeal from Circuit Court, Greene county ; Guy D. Kirby, Judge.
Action by W. R. Holloway and others, trustees of the Strafford Dairy Association, against the Mountain Grove Creamery Company, a corporation. From judgment for plaintiffs, defendant appeals. Affirmed.
V. O. Coltrane, of Springfield, for appellant.
L. L. Collins and Hamlin & Hamlin, all of Springfield, for respondents.
Plaintiffs, as trustees of the Strafford Dairy Association, brought suit for the use and benefit of the association to recover an alleged balance due for cream sold defendant under a contract from April 1, 1914, to April 1, 1915. Upon trial below before the court and a jury plaintiffs recovered and defendant appealed.
On March 7, 1914, defendant addressed to the association an offer, duly signed by it, and afterwards duly accepted by the association through its trustees, and the offer and acceptance constitute the contract, and is as follows:
The Elgin price referred to in the contract was the price that prevailed at Elgin, Ill., for similar products. The Strafford Dairy Association is a voluntary association of farmers. The association has its officers, who look after its business affairs, and is maintained perhaps more for convenience than for any other reason. The association furnished cream under the contract for about two months, and had received payment in accordance with the Elgin prices, as provided. On May 28, 1914, defendant wrote the association that it would not any longer take its cream under the contract price, that it would not pay Elgin prices; giving as a reason that the prosecuting officers of the state were threatening to prosecute defendant because it paid different prices for dairy products at the different stations in Missouri where defendant operated. While defendant gave the threat of its prosecution under the anti-discrimination law as a reason for the repudiation of its contract, it made no defense on that ground at the trial of this cause. In its answer it states that for some time prior to May 28, 1914, it had been purchasing cream from the Strafford Dairy Association on the basis of the Elgin prices, and that the association was represented by one Webster in the collection and shipping of the cream; and that on or about May 28, 1914, it notified the association that it, the defendant, would no longer purchase cream on the basis of the Elgin market, but would put the Strafford Dairy Association upon the same basis as all other stations patronized by defendant, and that defendant would thereafter pay at Strafford the same rate that it was paying at other stations, and would pay in addition thereto two cents commission on each pound of butter fat purchased at Strafford station; that thereafter defendant furnished the association with quotations each week as to what it was paying at other stations, and what it would be willing to pay at Strafford. Defendant further sets up in its answer that all the cream furnished by the association after defendant repudiated its contract was furnished in response to the quotations, and, with the knowledge and understanding that defendant was paying, and would only pay, the amounts mentioned in the quotations, and that the cream furnished thereafter was accepted by defendant with the understanding that it was furnished upon the basis of the quotations furnished. It is further alleged in the answer that defendant would not have accepted the cream at a higher price than that quoted plus the commission; and that each week after defendant notified the association that it would no longer take its cream on the basis of the Elgin market that it, the defendant, paid the association on the basis of the weekly quotations furnished, and that these weekly payments were in full for the amounts furnished each week, and that it included in its weekly check the commission, and that the association accepted these checks in full payment. The reply denied the acceptance of the checks in full payment; denied that it furnished cream to defendant on any basis except that of the Elgin market as provided in the contract.
Plaintiffs insisted that the association did not recognize defendant's attempt to escape from its contract, and that it, the association, gave defendant to understand that, if it accepted the cream, the association would demand pay on the basis of the Elgin market. We have this situation in effect: The association furnished cream for the remainder of the year after defendant sought to escape the consequences of its contract, saying, in effect, if you accept this cream you will have to pay according to the contract, while, on the other hand, the defendant says, I will accept your cream for the week, and here is your money on the basis of our quotations. The association says, we will take your cheek for its amount only, but we will hold you for the balance. This was enacted, in effect, weekly from about June 1, 1914, to April 1, 1915. Prior to defendant's repudiation of its contract the association paid Webster, its tester and agent, one cent per pound for his services. After the new conditions prevailed Webster received his pay in this manner. The defendant included in its weekly check, in addition to the amount of the cream at the quoted prices, a sum equal to two cents per pound on the cream furnished that week. This was all in one check, payable to the treasurer of the association. The treasurer cashed the check and paid Webster his two cents per pound.
The court on behalf of plaintiffs instructed as follows:
"The court instructs the jury that if you find that plaintiffs and the defendant entered into the contract dated March 7, 1914, and offered in evidence, and that the plaintiffs thereafter delivered to the defendant and the defendant received the butter fat mentioned in said contract, and you further find that the defendant failed to pay plaintiffs the price for said butter fat as mentioned in said contract, and you further find that the amount paid by defendant to plaintiffs was less amount than the price agreed upon in said contract, then you should find for the plaintiffs for the amount of difference, if any, between the price paid plaintiffs and the price fixed in said contract, not to exceed the amount sued for, to wit, $1,643.11, and interest at 6 per cent, from April 1, 1915, unless you find that the amount so received by plaintiffs was intended by plaintiffs to be received in full for the butter fat sold and delivered by it to defendant."
The defendant requested an instruction, which the court gave, after modifying, which instruction is as follows (modification in italics) :
"The court instructs the jury that although you may believe from the evidence that defendant entered into an agreement with the plaintiffs on or about March 7, 1914, by which they agreed to purchase for one year from April 1, 1914, the cream of the Strafford Dairy Association on the basis of the Elgin, Illinois, cream or butter fat market, and on and after about June 2, 1914, defendant refused to comply with said agreement, yet if you further find and believe from the evidence that on or about said June 2, 1914, defendant notified said Strafford Dairy Association that defendant would no longer purchase cream upon the basis of the Elgin market, and 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, and that thereafter defendant furnished said Strafford Dairy Association with quotations from time to time as to what it was paying that week for cream at other stations and what it would be willing to pay at Strafford, and the cream mentioned in plaintiffs' petition was furnished with the knowledge and understanding by plaintiffs that defendant was paying and would pay the amounts mentioned in said quotations, and that thereafter defendant paid said association in full for the amount of cream received upon the basis of said quotations from time to time as said cream was shipped and received, and said association accepted the same, and, further, either paid said association two cents commission on each pound of butter fat so purchased, or paid the tester for said association, L. A. Webster, two cents commission on each pound of butter fat so purchased, and said association accepted the services of said tester, L. A. Webster, so paid for by defendant, if you find such services were paid for by defendant, then you will find the issues...
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Halloway v. Mountain Grove Creamery Co.
...School Board v. Hull; 72 Mo.App. 403. The cause was accordingly so certified. The opinions of the Court of Appeals will be found in 209 S.W. 325 at 325-331. I. first question is, was the said agreement of March 7, 1914, a valid contract or an unilateral agreement which was not binding on ei......
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Halloway v. Mountain Grove Creamery Co.
...School Board v. Hull, 72 Mo. App. 404. The cause was accordingly so certified. The opinions of the Court of Appeals will be found in 209 S. W. 325-331. II. The first question is: Was the said agreement of March 7, 1014, a valid contract or an unilateral agreement which was not binding on ei......