Larabee Flour Mills v. West Plains Commission Co.

• Decision Date: 12 May 1924
• Citation: 216 Mo. App. 257,262 S.W. 389
• Parties: LARABEE FLOUR MILLS v. WEST PLAINS COMMISSION CO.
• Court: Missouri Court of Appeals

262 S.W. 389

216 Mo. App. 257

LARABEE FLOUR MILLS v. WEST PLAINS COMMISSION CO.

Springfield Court of Appeals. Missouri.

May 12, 1924.

Rehearing Denied June 7, 1924.

Appeal from Circuit Court, Ozark County; Fred Stewart, Judge.

Action by the Larahee Flour Hills, a corporation of Kansas City, against the West Plains Commission Company. Judgment tar defendant, and plaintiff appeals. Affirmed..

Glen A. Wisdom, of ?Kansas City, and William B. Roberts and J. L. Van. Wormer, both of West Plains, for appellant.

Green, Green & Green, of West Plains, for respondent.

FARRINGTON, J.

This action was begun by plaintiff filing its petition in the circuit court of Howell county, Mo., on January 20, 1021, based on a contract entered into between plaintiff and defendant on the 20th day of July, 1020, whereby the defendant, the West Plains Commission Company, agreed to purchase, and the plaintiff, the Larabee Flour Mills Corporation, agreed to sell to said defendant a carload at dour and feed, of the kind, quality, brands, and quantity, and at the price and terms mentioned and described in said contract and petition. It is alleged that by the terms of said contract said car of flour and feed: was to be shipped as soon as possible within 30 days, but that defendant on the 31st day of July, 1920, wired plaintiff a cancellation of the entire order and contract, and in obedience to same plaintiff did not ship said flour and feed. Plaintiff then brought this suit, alleging damages for the breach of said contract by defendant canceling said order and refusing to accept said car of flour and teed, he measure of damages being the difference in the contract price of said flour and feed and the market price at the date of the cancellation of the contract, July 31, 1920, amounting to $231.50, plus the amount agreed upon in said contract for the cancellation of the order, amounting to $45.13, making the aggregate amount of damages as alleged by plaintiff $276.63, the amount sued for.

Defendant, on April 7, 1021, filed in the Howell county circuit court an amended answer and counterclaim in which it alleged that said contract contained a clause of "prompt shipment," and that the words "prompt shipment" have a well-defined meaning among shippers and buyers, and mean within 10 days; that plaintiff breached said contract by failing to ship said carload of flour and feed within 10 days from the date of the contract; that it thereupon, canceled said order and alleged damages by reason thereof in the sum of $181.02.

Plaintiff, on the 9th day of April, 1021, filed a demurrer to defendant's answer and counterclaim, and moved to strike out the same for the reason that, as pleaded and admitted, this action is based on a written contract which is set out in plaintiff's petition, and such contract shows on its face that it is unambiguous; that such contract does not provide goods to be shipped within 10 days, ac claimed in said answer, but provides that such goods may be shipped at any time within 30 days, and the construction of such contract is a matter of law for the court, which demurrer was on the 17th day of May, 1923, overruled by the circuit court of Ozark county, to which court a change of venue was granted on the 20th day of April, 1921. Plaintiff contends reversible error was committed by the court in not sustaining plaintiff's demurrer, as the law is settled in this state that, where there are two clauses in a contract that conflict, the first one prevails, as shown by the authorities cited in its brief.

After the overruling of said demurrer, the cause was tried by the court, sitting as a jury, which found against the plaintiff on its petition and in favor of the defendant on its counterclaim in the sum of $180, from which, after an unsuccessful application for a new trial and in arrest of judgment, plaintiff duly appealed to this court.

The contract introduced in evidence is an ordinary contract for the sale and purchase of flour. The two clauses around which this lawsuit hinges are as follows: The one upon which plaintiff relies being near the beginning of the contract, and is as follows: "Time of shipment—soon as possible, within 30 days." The clause upon which the defendant relies is found near the close of the contract, and is a clause or phrase in the contract written in ink between two printed paragraphs, "want prompt shipment." Both of the terms relied upon were in the handwriting of the agent for the plaintiff and written in ink.

The principal question to be determined here is whether the following evidence, under the written contract described, is admissible. If it is, there is sufficient ground to sustain the verdict of the trial court; if it was error to admit the evidence, the judgment...