Interior Linseed Company v. Beckermoore Paint Company

• Decision Date: 16 February 1918
• Citation: 202 S.W. 566,273 Mo. 433
• Parties: INTERIOR LINSEED COMPANY v. BECKERMOORE PAINT COMPANY, Appellant
• Court: Missouri Supreme Court

202 S.W. 566

273 Mo. 433

INTERIOR LINSEED COMPANY v. BECKERMOORE PAINT COMPANY, Appellant

Supreme Court of Missouri, Second Division

February 16, 1918

Appeal from the St. Louis City Circuit Court. -- Hon. Rhodes E Cave, Judge.

Reversed.

J. L Hornsby for appellant.

(1) Whilst a written instrument is the consummation of all previous negotiations, and its meaning, if clear, cannot be subverted or varied by extrinsic evidence, yet if the meaning of the written contract is obscure or ambiguous, it is always competent to receive parol or other testimony in order to explain the obscure or ambiguous language, by showing the situation of the parties, the surrounding circumstances and the relation which the words of the writing bear to the facts constituting the subject of the contract. Ellis v Harrison, 104 Mo. 279; Edwards v. Smith, 63 Mo. 126; Black River Co. v. Warner, 93 Mo. 384; Mfg. Co. v. Car Co., 210 Mo. 735; Const. Co. v. Tie Co., 185 Mo. 62; Publishing Co. v. McNichols, 170 Mo.App. 709; Hemholz v. Everingham, 24 Wis. 266. (2) The formal written contract is ambiguous and obscure, and for this reason comes within the rule permitting the introduction of parol or other evidence to explain it. Bouvier, Law Dictionary; Abbot's Law Dictionary; Fish v. Hubbard, 21 Wend. (N.Y.) 658; Graham v. Hamilton, 27 N.C. 428; 17 Cyc. 664. (3) An ambiguous contract is to be interpreted against the seller. 2 Cyc. 279; Morgan, Legal Maxims; Peloubet, Legal Maxims, p. 16. It is a well-settled rule of construction that words will be construed most strongly against the party who used them, he being responsible for ambiguities in his own expressions. 9 Cyc. 590; 2 Bouvier, Law Dict. (3 Rev.) 2126. (4) The written contract as explained by the letters in evidence must be construed to mean that plaintiff was required to deliver the oil in question to defendant in the month of October.

Charles A. Powers and Sturdevant & Sturdevant for respondent.

(1) Every word in the contract in this case has a definite and well understood meaning. No word is used which has a doubtful or double meaning, the interpretation of which can be aided by extraneous evidence. Under such circumstances, evidence outside of the contract to explain the meaning of words used therein, is improper. The court should not consider conversations had or letters written by the parties in interest before or after the execution of the contract, in which the parties attempted to construe the meaning of the contract or of its terms. Where the meaning of the terms used is clear, the opinion of the parties as to the meaning of the contract, is irrelevant. 9 Cyc. 590. (2) When goods are contracted for shipment in carload quantities, the word "shipment" is used to express the idea of goods delivered to the carrier for the purpose of being transported from one place to another, and the agreement for "shipment" is that the shipper will place on board the carrier the goods to be transported. 35 Cyc. 2016; 25 Am. & Eng. Ency. Law, p. 852 note 4; 7 Words & Phrases (1 S.), pp. 6487, 6489; Century Dictionary, "Shipment;" Webster's New International "Shipment;" Webster's New International, "Ship." (3) The general rule is, that wherever the parties oblige themselves to the performance of duties within a certain number of days, they have until the last minute of the last day to perform their obligation. Cousins v. Bowling, 100 Mo.App. 456; 35 Cyc. 177. (4) Where a buyer contracts for the shipment of goods by carrier, delivery of the goods by the shipper to the carrier ordinarily constitutes delivery. There being nothing in the contract to the contrary, the place of delivery is the place where the goods are, when sold. In such case, the point of shipment being the place of delivery, shipment and delivery are for all practical purposes the same. And the fact that under the contract freight was allowed to St. Louis, the clause being used in connection with the words fixing the price only does not affect the rule. State v. Rosenberger, 212 Mo. 654, 657; 35 Cyc. 172, 193; Sharff v. Meyer, 133 Mo. 445, 447; 24 Am. & Eng. Ency. Law, pp. 1069, 1071; Cultivator Co. v. Railway, 64 Mo.App. 311 (4) The contract should be interpreted without recourse to any evidence outside its own contents. The court, however, to aid in such constructions, should look at the contract in the light of the purposes for which the contract was drawn, the conditions and circumstances surrounding the parties, their methods of doing business and the character of their businesses, and their relations to each other. In other words, the court should attempt to place itself in the position of the parties at the time when the contract was drawn, with a view of all the circumstances then existing. The construction of the contract is then strictly for the court. Donovan v. Boeck, 217 Mo. 87; Construction Co. v. Tie Co., 185 Mo. 61; Construction Co. v. Hayes, 191 Mo. 294; Meyer v. Christopher, 176 Mo. 594; 35 Cyc. 96.

OPINION

FARIS, J.

Plaintiff sued defendant for damages for an alleged breach of a written contract for the sale of linseed oil. On the trial nisi, before the court without a jury, plaintiff had judgment for $ 1523.42, and defendant duly appealed to the St. Louis Court of Appeals. Upon a hearing in the latter court the judgment of the circuit court was affirmed in an opinion by Nortoni, J., in which Reynolds, P. J., concurred. To the affirmance of the case Allen, J., was constrained to dissent, and to set forth his reasons therefor in an exhaustive opinion (Interior Linseed Co. v. Becker-Moore Paint Co., 190 Mo.App. 1, 175 S.W. 308); and since he deemed the opinion held by a majority of the judges of the St. Louis Court of Appeals to be in conflict with the rule announced by this court in the cases of Laclede Construction Co. v. Moss Tie Co., 185 Mo. 25, 84 S.W. 76, and Ellis v. Harrison, 104 Mo. 270, 16 S.W. 198, he asked that the case be certified up to us for decision, which was accordingly done. Hence our jurisdiction.

We have with much interest gone over both of the able opinions filed in this case by Judges Nortoni and Allen, and after a careful reading of these opinions, and of the record in the case, we are constrained to adopt the views held in the case by Judge Allen. His opinion states fully both the law and the facts of the case, and we find ourselves unable to add to what Judge Allen has written, any views which would be at all illuminating. Accordingly we adopt the dissenting opinion of Judge Allen, as our opinion, and as the law which ought to apply to the facts of this case. This opinion runs thus:

"On October 14, 1911, defendant, by telephone, ordered of plaintiff 320 barrels of linseed oil. Defendant accepted the order and on the same day confirmed the sale to plaintiff by the following letter:

"We are pleased to confirm verbal sale made to you to-day of 320 barrels strictly pure linseed oil for delivery in month of October at eighty-two cents per gallon f. o. b. your warehouse or factory, St. Louis, Missouri, basis raw on cooperage. Tank car delivery two and one-half cents less. Tank wagon delivery two cents less than cooperage.

"Thanking you for your valued order we beg to remain.

"Plaintiff and defendant are both corporations with offices in the city of St. Louis, though it appears that plaintiff kept its main supply of oil at Minneapolis, Minnesota, from which place car shipments were made. After writing the above letter, and evidently on the same day, plaintiff mailed to defendant the contract sued upon, which was signed by defendant through its president and returned by mail to plaintiff. According to the testimony of plaintiff's manager, who represented it throughout the transaction and signed the contract for it, no communications were had with defendant in reference to the sale between the time of the writing of the above letter and the execution of the formal contract. This contract consists of a printed form with certain blank spaces filled in by typewriting. The contract in full is as follows, the typewritten parts thereof appearing in italics, viz.:

"CONTRACT, Made at St. Louis, Mo. this 14 day of October, 1911 between INTERIOR LINSEED COMPANY of St. Louis, Mo., hereinafter called the seller, and The Becker-Moore Paint Co. of St. Louis, Mo., hereinafter called the buyer.

"The seller hereby sells and agrees to deliver and the buyer hereby purchases and agrees to receive 320 barrels containing about 50 gallons each (7 1/2 pounds in a gallon) of pure linseed oil, for shipment in carload quantities as follows, and within ten days of specified dates:

--- Bbls. January.

--- Bbls. June.

320 Bbls. October.

--- Bbls. February.

--- Bbls. May.

--- Bbls. September.

--- Bbls. March.

--- Bbls. August.

--- Bbls. December

--- Bbls. April.

--- Bbls. July.

--- Bbls. November.

"Tank wagon two cents less and tank car two and one-half cents less than cooperage raw linseed oil at eighty-two cents, boiled linseed oil at eighty-three cents per gallon, f. o. b. cars or buyer's factory, St. Louis, Mo. freight allowed to St. Louis, Mo. Buyer to furnish specifications for shipment in ample time to enable seller to execute order within the period or periods named above. In absence of specifications a carrying charge is to accrue of one-half cent per gallon per month or any part of the month, as long as seller shall be willing to carry the same.

"Failure to deliver any installment of oil shall not be breach hereof as to other installments.

"Terms: Net cash in thirty days from date of invoice or, if payment is made in ten days from date of invoice, a discount of one per cent will be allowed.

"In case of default in payment of any installment or purchase money when due, the whole sum owing by the buyer shall

...