Howe Scale Co. v. Geller, Ward & Hasner Hardware Co.

• Decision Date: 01 June 1926
• Docket Number: No. 19373.,19373.
• Citation: 285 S.W. 141
• Parties: HOWE SCALE CO. OF ILLINOIS v. GELLER, WARD & HASNER HARDWARE CO.
• Court: Missouri Court of Appeals

285 S.W. 141

HOWE SCALE CO. OF ILLINOIS v. GELLER, WARD & HASNER HARDWARE CO.

No. 19373.

St. Louis Court of Appeals. Missouri.

June 1, 1926.

Rehearing Denied June 25, 1926.

Appeal from St. Louis Circuit Court; William H. Killoren, Judge.

"Not to be officially published."

Action by the Howe Scale Company of Illinois against the Geller, Ward & Hasner Hardware Company. Judgment for plaintiff, and defendant appeals. Affirmed.

Greensfelder, Dyott & Grand, of St. Louis, for appellant.

Abbott, Fauntleroy, Cullen & Edwards, of St. Louis, for respondent.

BENNICK, C.

This action originated in a justice's court by the filing of a statement, wherein plaintiff asked judgment for $199.84, being the purchase price of certain scale beams ordered from plaintiff by defendant. An appeal was taken to the circuit court, where the case was tried de novo before a jury and a verdict rendered in favor of plaintiff for $198, with interest in the sum of $27.71, or for the total amount $225.71. From the judgment rendered on the verdict, defendant has appealed.

Both plaintiff and defendant have their offices in the city of St. Louis, Mo. On September 14, 1922, one of defendant's salesmen, named Merz, communicated by telephone with a Mr. Smith, a salesman for plaintiff, and inquired how soon plaintiff could deliver certain scale beams to Osceola, Ark. Smith wired the manufacturer in New York City, and thereafter called Merz and informed him that the scale beams could be delivered in two weeks. During the conversation, Smith was requested to use defendant's billheads and tags in making the shipment. Smith testified that he did not know the purpose for which the scale beams were wanted, and that he knew nothing about the cotton picking season in Arkansas. It appears, however, that plaintiff's manager, who took part in the transaction, knew that such scale beams were used in cotton fields, and that it was his information that the cotton picking season began in the latter part of July and was completed about the first part of the following November.

On September 14, 1922, and after the second telephone call, defendant mailed to plaintiff a written order confirming the telephone conversation, which order was received by plaintiff on September 15th. Among other things, this order stated:

"Please ship Walter Driver Trusteeship via express. Delivered to Osceola, Arkansas. * * * Please wire for these."

On September 19th plaintiff mailed to defendant a confirmation of the order, which confirmation, however, failed to state in what manner the shipment would be made. As a matter of fact, shipment was made by freight on October 14, 1922, and arrived at Osceola, Ark., on November 14, 1922. On the day that shipment was made, plaintiff sent invoices to defendant, which showed that the shipment had moved by freight. It was admitted that the invoices were duly received by defendant. On October 25, 1922, defendant mailed a card to plaintiff, which read:

"Please rush shipment on our order No. F 567, date Sept. 14, 1922, to be shipped direct to Walter Driver Trusteeship, Osceola, Ark. Advise us how soon you can make shipment and oblige."

On October 27th plaintiff replied to defendant as follows:

"In reply to your post card inquiry of the 25th, scale on your order for Walter Driver Trusteeship, Osceola, Ark., went forward Oct. 14th from New York, and we trust will reach your customer promptly."

Inasmuch as the scale beams arrived at Osceola too late to be of any use to defendant's customer, the shipment was refused, and defendant so advised plaintiff by letter.

The evidence, disclosed that ordinarily three days to one week was required for express shipments from New York to Osceola, Ark., while the time required for freight shipments differed from one week to a month, depending upon whether or not the business of the railroad company was congested.

Defendant first assigns as error the action of the court in overruling its demurrer to the evidence. Its contention is that the demurrer should have been sustained for the reasons: First, that time was of the essence of the contract; and, second, that the undisputed evidence in the case showed that the contract, which provided that the shipment should be made by express, was breached by plaintiff in making the shipment by freight.

As to the first of these contentions, we readily agree that, although defendant's order of September 14th, followed by plaintiff's confirmation of same on September 19th contained no specific provisions as to when shipment was to be made, the circumstances surrounding the transaction show that a period of two weeks for the delivery of the shipment was within the contemplation of the parties when the transactions preliminary to the giving and acceptance of the written order were being had. The rule is that time may be of the essence of a contract, though the contract itself does not expressly so declare, if it appears from all the circumstances that such was the intention of the parties. Redlands Orange Growers' Ass'n v. Gorman, 161 Mo. 203, 61 S. W. 820, 54 L. R. A. 718; Sabin Robbins Paper Co. v. Mere. Co. (Mo. App.) 263 S. W. 479; Lane v. Nunn, 211 Mo. App. 280, 243 S. W. 427; Bonnett Brown Sales Service v. Klepper (Mo. App.) 265 S. W. 993.

Likewise we agree that, in making the shipment by freight instead of by express, plaintiff was guilty of a breach of the contract for the reason that a seller may not substitute a different kind of performance from that required by the contract without the buyer's consent. Cluley-Miller Coal Co. v. Mfg. Co., 138 Mo. App. 274, 280, 120 S. W. 658; Kansas Flour Mills Co. v. Murry (Mo. App.) 228 S. W. 854; Wilder v. Cake Cone Co. (Mo. App.) 259 S. W. 503, 504.

However, even though the shipment 'was made by freight, when defendant's order called for a shipment by express, plaintiff contends that it is still entitled to recover in this action for the reason that defendant waived its right to insist upon an express shipment. A waiver is the intentional relinquishment of a known right. The decisions hold that rights are not waived unless such waiver is distinctly made with full knowledge of the rights alleged to have been waived; nor is there a waiver unless facts plainly appear, not only that the right is known, but that it is the intention to waive. Schwab v. American Yeoman, 305 Mo. 148, 264 S. W. 690; Springfield Security Co. v. Boren (Mo. App.) 275 S. W. 566; Springfield Gas & Electric Co. v. Surety Co. (Mo. App.) 250...