Laclede Const. Co. v. T. J. Moss Tie Co.

• Decision Date: 13 December 1904
• Citation: 84 S.W. 76,185 Mo. 25
• Parties: LACLEDE CONST. CO. v. T. J. MOSS TIE CO.
• Court: Missouri Supreme Court

84 S.W. 76

185 Mo. 25

LACLEDE CONST. CO. v. T. J. MOSS TIE CO.

Supreme Court of Missouri, Division No. 2.

December 13, 1904.

SALE OF RAILROAD TIES—CONTRACT—CONSTRUCTION —PAROL EVIDENCE—TRANSFER TO CONSTRUCTION COMPANY — RIGHTS OF PARTIES— DEMAND FOR PERFORMANCE—REVIEW ON APPEAL —CONFLICTING EVIDENCE.

1. A contract was expressed by an offer in writing by a tie company to the president of a railroad company to furnish the latter "during the year 1899 all the white oak ties you may need, to the number of 1,000,000 or less," and its acceptance, referring thereto as a proposition to furnish "ties as needed during the year 1899." Held, such contract might be explained by parol to require the tie company to furnish only so many ties as might be needed by the railroad company that year in building contemplated extensions of its road.

2. Under a contract by a tie company to supply ties, not to exceed 1,000,000, during the year 1899, that might be needed for the construction of proposed new lines, neither party was bound unless the lines were built, and then only to the extent of the number needed for that purpose.

3. Subsequent acts and declarations of the parties to a contract, tending to show their construction of the contract, may be shown to explain its meaning.

4. A contract of a tie company with a railroad company to supply the latter with such ties as might be needed during the year 1899 in building proposed new lines was transferred to a construction company. The memorandum of the transfer was in the form of a letter from the construction company to the tie company, stating that, as per verbal understanding, the contract with the railroad company "for such ties as may be needed next year is transferred to and assumed by this company, * * * and that all ties shall be delivered to us on notice to you as may be required by us during the year 1899." The verbal understanding referred to was a request for the transfer, consented to, made by the president of the railroad company, who was also president of the construction company, in which he gave as a reason therefor that the construction company had been organized to build the extensions, and would pay the bills as the ties were furnished, and it would be much more convenient to render bills against the construction company, and have a voucher that would cover their ties, and prevent an interchange of vouchers from one company to another. Held, that the contract was the same in each case, and the tie company was only bound to furnish the construction company such ties as might be needed for the extensions actually built.

5. Where there is conflict in testimony, the Supreme Court cannot undertake to pass on the credibility of witnesses in a case tried to the court.

6. Under a contract by which a tie company was to furnish a construction company the ties needed for certain railroad lines which it was to build, demand was made by it for a certain number of the ties; but there was nothing outside of the demand to show that the ties were in good faith needed for any of the purposes of the contract, the lines in question never having been built. Held, that there was nothing, therefore, to take this particular lot out of the general purposes for which ties were agreed to be furnished, so as to render the tie company liable for failure to deliver the same.

Appeal from St. Louis Circuit Court; John A. Talty, Judge.

Action by the Laclede Construction Company against the T. J. Moss Tie Company for a breach of contract of sale. From a judgment for defendant, plaintiff appeals. Affirmed.

Winston, Payne & Strawn and R. H. Kern, for appellant. R. F. Walker and G. A. Finkelnburg, for respondent.

GANTT, P. J.

This is an appeal by the plaintiff in the above-entitled cause from a judgment of the circuit court of the city of St. Louis in favor of the defendant. A jury was waived, and the cause tried by the court.

The petition alleges that the plaintiff is a corporation under the laws of Missouri for the purpose of building railroads and furnishing and laying ties thereon, and the defendant is a corporation under the laws of Missouri for the purpose of buying, selling, and furnishing railroad ties; that on October 31, 1898, the defendant in writing (filed with the petition) sold and agreed to deliver to the St. Louis, Peoria & Northern Railway Company during the year 1899 all the white oak ties it might need, to the number of 1,000,000 or less, at 41 cents each, free on board cars at the track of said railway company at East St. Louis, Ill., or at Madison, Ill., said ties to be of the standard size, 6×8, 8 feet long, and hewn of live, sound white, burr, or post oak; that between said October 31, 1898, and November 29, 1898, said St. Louis, Peoria & Northern Railway Company transferred said contract to plaintiff, and on said November 29, 1898, an agreement was entered into in writing (filed with the petition as a part thereof) whereby said transfer was assented to by defendant, whereby it was agreed between plaintiff and defendant that defendant should sell and deliver to plaintiff during 1899 all the white oak ties plaintiff might need, to the number of 1,000,000 or less, at 41 cents each, free on board the cars at the tracks of said St. Louis & Peoria Railway Company at East St. Louis or Madison, Ill., said ties to be of standard size, 6×8, 8 feet long, and hewn of live, sound white, burr, or post oak, all said ties to be delivered to plaintiff on notice to defendant as might be required by plaintiff during the year 1899; that on June 19, 1899, plaintiff was ready and willing and duly offered to receive at the track of the said railway company in East St. Louis, Ill., or Madison, Ill., and to pay for, the said 1,000,000 ties, and in writing notified defendant to deliver said ties as rapidly as possible, having in view the delivery of the entire amount called for in the contract within the limit of time specified, to wit, during the year 1899; that plaintiff duly performed all the conditions of the said agreement on its part, but defendant refused and failed to deliver said 1,000,000 ties, or any part thereof, to plaintiff, to its damage in the sum of $170,000, for which, with interest from December 31, 1899, it prays judgment.

The exhibits to said petition are, respectively, in words and figures as follows, to wit:

                "W. L. Huse,           G. W. Hill
                    "President.             Treasurer
                "J. W. Fristoe,        Jas. W. Harrison
                  "Vice President and       Secretary
                    Gen'l Manager
                

"T. J. Moss Tie Co. Railroad Material.

"Office, Rooms 720 and 721 Security Building.

                           St. Louis, Mo., October 31, 1898.
                

Mr. Wm. E. Guy, President St. L., P. & N. Ry., City—Dear Sir: Referring to your personal request for price on railroad ties, we will furnish you during the year 1899 all the white oak ties you may need, to the number of one million, at forty-one (41) cents each, f. o. b. cars your track, East St. Louis, or Madison, Ills. Ties to be of standard size, 6×8, 8 feet long, and hewn of live, sound, white, burr, or post oak. We shall be pleased to have your order, and know that we are in better position to furnish you first-class material as and when you may need it than any concern in the country.

                    "Yours truly, T. J. Moss Tie Co.,
                                    "J. W. Fristoe, Mgr."
                

                "St. Louis, Peoria & Northern R. R. Co.
                    President's Office, Security Building.
                "William E. Guy, President & Gen'l Mgr.
                          "St. Louis, Mo., Nov. 28, 1899.
                

"Mr. J. W. Fristoe, Mgr. T. J. Moss Tie Co.—Dear Sir: Your proposition of October 31st to furnish this company white oak ties as needed during the year 1899 is hereby accepted.

                    "Yours very truly,    Wm. E. Guy,
                                           "Gen'l Mgr."
                "Laclede Construction Company. Security
                               Building.
                                  "November 29th, 1898.
                

"Mr. J. W. Fristoe, Manager T. J. Moss Tie Co., City—Dear Sir: As per verbal understanding of this day with yourself, the contract with the St. Louis, Peoria & Northern Railway Company for such ties as may be needed next year is transferred to and assumed by this company, with the additional provision that such second-class ties as you may be able to furnish and as may be required by us shall be furnished to us at 9 cents less per tie than first-class, and that all ties shall be delivered to us on notice to you as may be required by us during the year 1899.

                   "Yours very truly,     Wm. E. Guy,
                                              "President.
                  "Accepted Nov. 29th, 1898.
                                 "T. J. Moss Tie Co.,
                         "By J. W. Fristoe, V. P. & Mgr."
                

The answer of defendant, omitting caption, is as follows:

"The defendant, for its amended answer, filed by leave of court, to plaintiff's petition in the above-entitled cause, denies generally each and every allegation contained in said petition. And, further answering, defendant says that the only transaction which occurred between defendant and the St. Louis, Peoria & Northern Railroad Company concerning the matters and things referred to in the petition was a conditional offer or proposal from this defendant to said railroad company to furnish not exceeding one million ties, if needed by said railroad company for the construction of certain extensions of its line of railroad then contemplated by said railroad company, and as might be needed for that purpose during the year 1899, and for no other purpose whatever; that at the request of plaintiff and said railroad company said proposal was afterwards transferred to the Laclede Construction Company, the plaintiff in this suit, upon the express representation and assurance by plaintiff and by said railroad company that said construction company was specially organized to build the aforesaid extensions for said railroad company, and for no other purpose, and that it would be more convenient to make payments for ties, if needed, through said construction company; but defendant...