Appeal from Circuit Court, Greene County; Alfred Page, Judge.
Action by the Iola Portland Cement Company against William Ullmann and another. From a judgment for plaintiff, defendants appeal. Affirmed.
This action was commenced in the Greene county circuit court by the Iola Portland Cement
Company, a corporation, against the defendants William Ullmann and Lee Ullmann, to recover the purchase price of 550 barrels of Iola cement furnished in cloth bags. Trial was had before the court sitting as a jury, and judgment rendered for the plaintiff, from which the defendants have appealed.
The petition is as follows (caption omitted):
"Plaintiff says that it is, and was at the several dates herein mentioned, a corporation organized and operating under the laws of the state of Kansas, and duly authorized to do business in the business of manufacturing and selling cement to be used for building and construction purposes, known as Iola Portland cement; that defendants are and were at said times partners, doing business under the firm name of Ullmann Bros. in the city of Springfield, Greene county, Mo., and engaged in the business of buying and selling cement, lumber, and other materials used for building and construction purposes.
"Plaintiff further says that during the month of December, 1909, it sold and delivered to the defendants, at the instance and request of defendants, 550 barrels of Iola Portland cement, as shown by the itemized statement of account hereto attached and marked `Exhibit A'; that the reasonable value of said cement was 98 cents per barrel, plus 40 cents per barrel for cloth packages in which the cement was shipped, said charge of 40 cents per barrel to be refunded upon the return to the plaintiff of said cloth packages; that all credits due defendants for cloth packages returned and for freight paid by the defendants have been duly allowed and subtracted from the total amount charged on said Exhibit A; that the amount now due and owing by the defendants to plaintiff is, as shown by Exhibit A, $440; that neither the defendants, nor any one for them, have paid the same, or any part thereof; that said amount has been due and payable since the 1st day of February, 1910, and as an open account draws interest at the rate of 6 per cent. per annum from said date.
"Wherefore, by reason of the premises, plaintiff says defendants are justly indebted to it in the sum of $440, with interest at the rate of 6 per cent. per annum from February 1, 1910, for which it asks judgment, with its costs."
The defendants filed the following answer and counterclaim (caption omitted):
"Come now the defendants in the above-entitled cause, and for answer to plaintiff's petition herein, and by way of counterclaim, state that on and prior to the 18th day of August, 1909, the plaintiff contracted to and with the defendants to sell and deliver to them 4,000 barrels of cement, to be delivered in Springfield, Mo., as directed by the defendants, at the net price of 98 cents per barrel; that in pursuance of said contract plaintiff delivered to defendants 1,740 barrels of cement.
"Defendants further state that said plaintiff failed and refused to ship the remainder of said 4,000 barrels of cement so purchased, to wit, 2,260 barrels, although requested so to do by the defendants; that the defendants at all times complied with all the conditions of the contract between the said plaintiff and defendants, but that plaintiff, in violation of the terms of its said contract, as aforesaid, failed and refused to deliver said 2,260 barrels of cement.
"Defendants further state that after the dates of their several contracts with plaintiff, as aforesaid, the market price of cement increased, and that by reason of plaintiff's failure to deliver said 2,260 barrels of cement, as aforesaid, defendants suffered a loss, and were damaged in the sum of $679.30.
"Defendants further state that they have paid plaintiff the purchase price for the 1,740 barrels so delivered by plaintiff, except the sum of $241.60, which said sum of $241.60 would be due the plaintiff for the cement so delivered, had it complied with the terms of its contract.
"Wherefore, by reason of the premises, defendants pray judgment against the plaintiff in the sum of $437, the balance due defendants, and for costs."
Thereafter the plaintiff filed the following reply (caption omitted):
"Comes now the plaintiff, and for its reply to the answer and counterclaim of the defendants herein denies each and every allegation in said answer contained. And, further replying to said counterclaim, plaintiff says that, on or about the 10th day of August, 1909, it entered into a written contract with the defendants, by the terms of which contract the plaintiff was to sell and deliver to the defendants 3,000 barrels of cement at the agreed price of 98 cents per barrel for the cement and 40 cents per barrel for the cloth sacks in which the cement was to be shipped, said 40 cents per barrel to be refunded when the sacks were returned to plaintiff; the amount so refunded to be subject to a count and inspection of said sacks upon their arrival at plaintiff's factory. That on or about the 17th day of August, 1909, said contract was, by agreement of plaintiff and defendants, modified in writing, so that the amount of cement to be delivered was to be 4,000 barrels. That by the terms of said written contract it was agreed that said cement was to be used in the erection of the courthouse at Springfield, Mo., and defendants expressly agreed not to use the same for any other purpose, or to resell or loan any of said cement. That plaintiff was not required to furnish more than 2,000 barrels of cement in any calendar month, and all of said cement was to be delivered before December 31, 1909. That by the terms of said contract the defendants agreed to give
plaintiff shipping instructions a reasonable time before said cement was to be shipped, and the plaintiff was not to be required to ship any cement, except on receipt of such instructions.
"Plaintiff further says that the defendants, in violation of their contract, did not use said cement in the construction of the courthouse, but used the same for other purposes. That defendants did not require or demand any cement for said purpose, and could not have used it for said purpose, and therefore defendants suffered no loss or damage for any failure of plaintiff to deliver cement according to the terms of said contract.
"Plaintiff further says that the defendants, in violation of their said contract, did not give plaintiff shipping instructions a reasonable time before December 31, 1909, or at any time before said date, for all the cement which they had agreed to buy in said contract, but that defendants gave plaintiff instructions to ship only 1,740 barrels, all of which plaintiff shipped and delivered to the defendants. Wherefore plaintiff says its failure to ship the balance of the cement mentioned in said contract, to wit, 2,260 barrels, was caused by the act of the defendants in failing to give said shipping instructions, and that such failure on the part of the plaintiff is therefore excused, and plaintiff is not liable for any loss or damage which defendants may have suffered thereby.
"Wherefore plaintiff prays judgment on defendants' counterclaim."
The defendants filed the following answer to the plaintiff's reply (caption omitted):
"Come now the defendants, and for answer to the reply of the plaintiff filed herein deny each and every allegation therein contained. And for further reply defendants state that on the 12th day of July, 1909, they purchased of plaintiff 1,000 barrels of cement, to be delivered to them at Springfield, Mo., at such times as the same was ordered by said defendants. That afterwards, to wit, on the 13th day of June, 1909, defendants notified said plaintiff that they had sold and disposed of the 1,000 barrels theretofore purchased, and requested said plaintiff to increase said contract of the date of July 12th aforesaid, so that said contract of purchase would provide for 3,000 instead of 1,000, barrels, as aforesaid. That said plaintiff accepted said order of...
