Ismert-Hincke M. Co. v. Mercuric Bros. Spaghetti Mfg. Co.
| Citation | 243 S.W. 408 |
| Decision Date | 13 June 1922 |
| Docket Number | No. 17199.,17199. |
| Parties | ISMERT-HINCKE MILLING CO. v. MECURIO BROS. SPAGHETTI MFG. CO. |
| Court | Court of Appeal of Missouri (US) |
Appeal from St. Louis Circuit Court; Frank Landwehr, Judge.
"Not to be officially published."
Action by the Ismert-Hincke Milling Company against the Mercurio Bros. Spaghetti Manufacturing Company. From an order granting defendant's motion for a new trial, plaintiff appeals. Affirmed.
Abbott, Edwards & Luedde, of St. Louis, for appellant.
Thos. T. Fauntleroy and P. H. Cullen, both of St. Louis, for respondent.
On May 10, 1917, plaintiff and defendant entered into a contract whereby defendant agreed to purchase from plaintiff 1,000 barrels of flour, and pay therefore $12.40 per barrel, f. o. b. St. Louis, "subject to government regulations." The contract, bearing the above date, is as follows:
Plaintiff sues defendant on this contract, alleging that plaintiff failed and refused to order or receive and pay for a certain portion of this flour.
The answer alleges that the flour was purchased subject to government regulations, and that, after the purchase, the government of the United States set a price of $2.20 per busnel on wheat, which resulted in the price of $10.20 per barrel for flour; that on or about September 1, 1917, defendant made demand on plaintiff to ship said flour at the price regulated by the government, to wit, $10.20 per barrel. The answer further alleges that at the time said order was given it was specially agreed that the purchase should be subject to government regulations, and that it was explained to defendant at the time the contract was entered into that "subject to government regulations" meant, and was intended to mean, that, if the price of flour became higher or lower in accordance with such regulations, the price at which the flour would be billed to defendant would be in accordance with such regulations, and that the term "subject to government regulations," as used among men engaged in the business in which plaintiff and defendant were engaged, meant in the city of St. Louis and elsewhere that the seller was bound to sell at the price established by the government, and the defendant was not required to pay a larger price than that established by the government.
Upon a trial in the court below plaintiff obtained judgment, and defendant's motion for new trial was sustained, and from the order granting defendant a new trial plaintiff has appealed to this court. The court sustained defendant's motion for new trial on the ground that it had erred in excluding legal, competent, material, and relevant evidence offered on the part of the defendant.
The court having designated the ground on which the new trial was granted, and plaintiff in its brief and argument in this court not having undertaken to point out any other grounds in the motion upon which a new trial should have been granted, we will confine ourselves on this appeal to a consideration of the one ground stated by the court as its reason for granting a new trial.
The evidence excluded by the court was mainly of a character tending to show that the term "subject to government regulations" was meant and understood by the parties to this contract to mean that, if the government by some sort of regulations, which were anticipated by everybody at the time the contract was entered into, fixed a standard price for wheat, which would govern the price of flour, then this government regulation should control, and the flour was to be shipped at the price so fixed.
Plaintiff's position in this court, if we understand it correctly, is: First, that the offer of proof was not sufficiently specific and definite; and, second, that the agent authorized to solicit orders for his principal had...
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