Kirchman v. Tuffli Bros. Pig Iron & Coke Co.

• Decision Date: 25 October 1909
• Parties: KIRCHMAN v. TUFFLI BROS. PIG IRON & COKE CO.
• Court: Arkansas Supreme Court

122 S.W. 239

KIRCHMAN v. TUFFLI BROS. PIG IRON & COKE CO.

Supreme Court of Arkansas.

October 25, 1909.

Appeal from Circuit Court, Crawford County; Jeptha H. Evans, Judge.

Action by Tuffli Bros. Pig Iron & Coke Company against William Kirchman. Judgment for plaintiff, and defendant appeals. Affirmed.

Sam R. Chew, for appellant. E. L. Matlock, for appellee.

FRAUENTHAL, J.

This is an action instituted by the appellee against the appellant to recover damages for an alleged breach of contract. The complaint, in substance, alleged that on July 29, 1907, the appellant entered into a contract with appellee for the purchase of "six cars of 72-hour economy foundry coke," to be shipped to appellant between that date and July 1, 1908, as called for, at $8.95 per ton of 2,000 pounds f. o. b. cars at Van Buren, Ark.; that at the request of appellant one car of said coke was shipped on October 2, 1907, and that thereafter the appellant countermanded the order, and refused to take and receive the remainder of the coke, and repudiated the contract, although the appellee fully complied with its part of the contract. It alleged that it was damaged by reason of the said breach of the contract by appellant in the sum of $250, for which it asked judgment. The appellant made a motion to require the appellee to make the complaint more definite and certain by stating at what time and how many cars the appellee prepared for shipment and the items of the damages. The court overruled this motion. Thereupon appellant filed his answer in which, in substance, he alleged that on receipt of the first car of coke he discovered that the coke would not answer the purpose for which he had purchased same, and he immediately countermanded the order, and directed the appellee not to ship any more coke on the contract.

It appears from the evidence in the case that the parties entered into the following written contract on July 29, 1907:

"To Tuffli Bros. Pig Iron & Coke Company, Sales Agents, St. Louis, Mo. — Dear Sirs: Please enter our order as follows: Quantity, six car loads. Grade 72 hr. Economy Fdy. Coke. Price $8.95 per ton of 2,000 lbs. F. o. b. Van Buren, Arkansas. Terms cash 30 days. Shipment between now and July 1, 1908, as called for. Railroad weights at point of origin to govern settlements. All agreements are contingent upon strikes, accidents, car supply, railroad delays or other causes beyond our control. The above contract is not subject to any change or cancellation whatsoever without obtaining full consent of the sellers. Yours truly, The Engineering Works, Wm. Kirchman, Prop.

"Accepted. Tuffli Brothers Pig Iron & Coke Co., Sales Agents."

In October thereafter the appellee shipped to appellant at his request one car of coke, which was received and paid for. Not receiving request for further shipment, the appellee wrote to appellant, who, on May 2, 1908, replied as follows: "Gentlemen: We have your favor of the 30th ult. regarding coke shipments, and in view of the fact that business does not pick up as expected, and that we still have a large quantity of coke on hand, we consider it the best policy for all concerned to cancel the balance of this contract, as we are unable to tell at present when we will have capacity to store any more coke. Very truly yours, The Engineering Works, By William Kirchman, General Manager." Further correspondence passed between the parties when, on June 13, 1908, the appellant wrote to appellee as follows: "Van Buren, Ark. June 13, 1908. Tuffli Brothers Pig Iron & Coke Company. St. Louis, Missouri. — Gentlemen: Answering your favor of the 9th regarding coke still due on contract will say, we affirm our former letter canceling balance of order. We find that this coke does not come up to our expectations," etc. The evidence tends to prove that the remaining five cars of coke amounted to 125 tons, and that the market value of said coke declined $1.90 per ton from the said contract price by June 13, 1908. There was no market value of the coke at Van Buren, the place of delivery, but the above market value was at the oven, the nearest place to Van Buren having such market, and with transportation from such place to Van Buren the decline in the market value of the coke from the contract price would have amounted to $1.90 at Van Buren. The evidence tended further to prove that the coke named in the contract was of a quality and grade sufficient for the purpose for which it was purchased. The jury returned a verdict in favor of appellee for $237.50.

The questions that are presented by the appellant upon this appeal are determined by the nature of the above contract, its breach, and the character of this action. The parties had entered into an executory contract by which the appellant had agreed to purchase the commodity noted in the contract, which was to be shipped by the appellee upon request made therefor by appellant at any time from July 29, 1907, to July 1, 1908. The appellee was to perform the contract on its part by shipping the coke on request of appellant at any time up to July 1st. If during said time the appellant had made a request for the shipment of the coke, and the appellee had failed or refused to ship same, then appellant could have recovered from appellee such damages as he might have suffered by reason of such failure. But the appellant made no request for shipment, and before the time arrived for the performance of the contract on the part of the appellee, the appellant canceled the order, and by his letter of June 13th unqualifiedly announced that he would not receive the coke, and would not therefore accept performance of the contract on the part of appellant. The contract was then not rescinded, but broken by the appellant; and, by such repudiation of the contract, he absolved the appellant from any further duty to tender or ship the coke. 2 Mechem on Sales, § 1087. The appellee at this time of the repudiation of the contract by the appellant was not in any default, and it did...