Keyes Farm & Dairy Co. v. Prindle

• Decision Date: 08 April 1913
• Citation: 155 S.W. 391,249 Mo. 600
• Parties: KEYES FARM & DAIRY COMPANY, Appellant, v. E. M. PRINDLE
• Court: Missouri Supreme Court

155 S.W. 391

249 Mo. 600

KEYES FARM & DAIRY COMPANY, Appellant, v. E. M. PRINDLE

Supreme Court of Missouri, Second Division

April 8, 1913

Appeal from St. Louis City Circuit Court. -- Hon. William M. Kinsey Judge.

Affirmed.

Bernard Greensfelder for appellant.

Lyon & Swarts and Dwight D. Currie for respondent.

OPINION

BLAIR C. --

This is an appeal from a judgment for defendant in an action for damages for defendant's refusal to ship to plaintiff the milk produced by him at his dairy in Green county, Illinois the petition alleging that under the contract herein-after set out defendant was obligated to deliver plaintiff his entire product. Defendant concedes the contract bound him to ship plaintiff certified milk and cream in quantities sufficient to meet the requirements of the customers plaintiff had secured for those particular commodities, but avers other shipments were to be made at his option. Defendant offered to continue to perform the contract according to his construction of it, but this did not satisfy plaintiff and this suit followed.

During the two years prior to the execution of the contract in question defendant shipped milk and cream to plaintiff, a corporation engaged in selling dairy products to consumers in St. Louis. Meanwhile the St. Louis Pure Milk Commission (hereafter referred to as the Commission) had been established, had adopted and registered as a trade-mark the words "Certified Milk" and had prescribed numerous regulations to be observed by dairies in producing and marketing milk as a condition precedent to granting them permission to sell milk in St. Louis as "certified milk." In addition to the requirements as to sanitation, the exclusion of tuberculous animals from the herd, etc., "certified milk" was required to be bottled at the dairy and the bottles packed in ice. Accompanying each bottle was a certificate in the form of a printed slip furnished by the Commission, which only those dairies complying with the Commission's regulations were authorized to use. Milk thus certified sold in St. Louis for fifteen cents per quart.

In the spring of 1906 the manager of plaintiff company conceived the idea of attempting to build up a certified milk business, plaintiff not then receiving any milk of that character though marketing large quantities of uncertified milk, cream, etc. To accomplish this purpose plaintiff took up the matter with defendant and these negotiations resulted in the execution, in March, 1906, of the contract for the alleged breach of which this action was brought. The essential parts of the contract are:

"Party of the first part (Prindle) agrees to supply party of second part (Keyes Farm & Dairy Company) with milk and cream from his dairy herd in Green county, Illinois, according to rules regulations and requirements of the St. Louis Pure Milk Commission, as specified in printed circular of information concerning the requirements of the St. Louis Pure Milk Commission for certified milk -- a printed copy of which is hereto attached and made a part of this agreement. And party of second part agrees, for and in consideration of the sum of $ 1 to party of first part in hand paid, the receipt of which is hereby acknowledged, to purchase from party of the first part his entire product of pure milk and cream, or either, for the term of five years from date hereof, delivered daily in sweet and merchantable condition, at prices and terms hereinafter mentioned, delivered f. o. b., Union Station, St. Louis, Missouri.

"For certified milk in cans furnished either by party of second part or at his request, through St. Louis Pure Milk Commission, 16 cents gallon. For skim milk in cans furnished to party of first part, 7 cents gallon. For cream in such denominations of butter-fat percentage as may from time to time be ordered, 3 cents per point, according to Babcock test, at 3 cents per p(o)int.

"For certified milk in bottles furnished by party of second part f. o. b., Union Station, St. Louis, Mo., packed in boxes furnished by party of first part, said milk to be bottled, labeled and shipped in boxes with cracked ice surrounding the bottles, 9 cents per quart, f. o. b., Union Station, St. Louis, Missouri, conditioned, however, that if party of second part secures contract to furnish the St. Louis Pure Milk Commission, St. Louis, Missouri, with its requirements for milk, skim milk, and cream, that party of second part shall and will pay unto the party of the first part, in regular monthly settlement, one-half of net profits derived from sales to the St. Louis Pure Milk Commission for season of 1906, or any renewal or extension of such contract with said Commission during the term of this contract; and conditioned, further, that party of second part does hereby agree to take not less than one case of bottled certified milk daily, first shipment to commence not later than April 10, 1906, and to increase orders for such milk as fast as demands and requirement of customers of party of second part necessitate, and in consideration of the extra expense entailed by party of the first part in remodeling his barn and premises to conform to requirements of St. Louis Pure Milk Commission, party of the second part does hereby obligate itself not to produce from its own farm, or purchase from others, any certified milk in bottles until the entire supply of party of the first part shall first have been exhausted by sales to party of second part, and party of second part further hereby obligates itself to take any excess of milk and cream, skim milk, or either, as may be ordered, during the term of this contract, which is not required by party of second part, in bottles or in cans, by sale to St. Louis Pure Milk Commission, produced by party of first part, delivered in cans of party of first part, in good condition, f. o. b., Union Station, St. Louis, Missouri, at the following prices: For cream, 3 cents per point; for whole milk, not less than 3 80/100 butter-fat, 16 cents per gallon; for skim milk, 6 cents per gallon. Party of the second part is to pay for any advertising in connection with the sale of certified milk, and no portion of such...