Laswell v. National Handle Co.

• Decision Date: 22 March 1910
• Citation: 126 S.W. 969,147 Mo. App. 497
• Parties: LASWELL et al. v. NATIONAL HANDLE CO.
• Court: Missouri Court of Appeals

126 S.W. 969

147 Mo. App. 497

LASWELL et al. v. NATIONAL HANDLE CO.

St. Louis Court of Appeals. Missouri.

March 22, 1910.

1. SALES (§ 81) — CONTRACTS — CONSTRUCTION.

A contract of sale of the output of a mill for a fixed period, binding the buyer to take the output and to pay cash f. o. b. cars, and stipulating for inspection at the mill, does not require the seller, in view of the course of business between the parties that the seller should not load until receiving shipping directions, to load on cars before receiving shipping directions, and, where the buyer fails to give directions, the omission to load on cars does not defeat a recovery by the seller.

2. SALES (§ 161) — CONTRACTS — CONSTRUCTION.

Where a seller in a contract of sale of the output of a mill f. o. b. cars on receiving shipping directions failed to load on receiving directions, he failed to perform.

3. SALES (§ 174) — CONTRACTS — CONSTRUCTION.

Where a seller in a contract of sale binding him to load the goods on cars at his expense on receiving shipping directions did not receive a letter of the buyer giving directions and subsequently wrote for advice, and the buyer, though receiving the letter, failed to give directions, the buyer was in default.

4. SALES (§ 176) — CONTRACTS — CONSTRUCTION.

Where a buyer of goods f. o. b. cars declared he was not bound to accept some of the goods, because not included in the contract, he could not avail himself of the defense that he would have taken such goods had they been loaded on cars.

5. TENDER (§ 16) — FAILURE TO MAKE TENDER — EXCUSE.

A tender is unnecessary where the person to whom it should be made has shown that he will refuse it if made.

6. SALES (§ 168) — CONTRACTS — CONSTRUCTION.

Where a contract for the sale of the output of a mill for a fixed period stipulated for inspection at the mill and for cash payment without fixing the time for inspection or payment, both parties must act reasonably.

7. SALES (§ 384) — CONTRACTS — BREACH — RECOVERY.

A seller of the product of his mill for a specified time cannot recover unearned profits on the buyer's breach, unless the buyer's conduct in law prevents the seller from further performance.

8. CONTRACTS (§ 321) — NONPERFORMANCE — EFFECT.

Where plaintiff was prevented from performing his part of a contract by defendant, the other party, rendering performance impossible, or by directing plaintiff to desist from performance, or by defendant's failing to keep a condition precedent, or by breaching covenants equivalent to renunciation, plaintiff is entitled to the full benefit he would have derived from keeping it.

9. CONTRACTS (§ 173) — CONSTRUCTION — DEPENDENT STIPULATIONS.

Stipulations in commercial transactions are generally treated as dependent and indivisible on the theory that such construction conforms to the intention of business men who are accustomed to depend on prompt compliance with engagements, and may be ruined by tolerating breaches.

10. SALES (§ 62) — CONTRACTS — BREACH — EFFECT.

Where a seller of the output of his mill for a fixed period for delivery f. o. b. cars, terms cash, and inspection at the mill, went in debt for his mill, machinery, and timber, solely on the faith of the contract of sale, expecting to meet his liabilities with the money collected on installments of the output delivered, but did not insist on a proviso that car loads should be inspected and taken at stated intervals or to make those acts conditions precedent to further deliveries, a failure of the buyer to take and accept promptly a single car load did not of itself excuse the seller from going ahead and yet enable him to recover future profits.

11. SALES (§ 62) — CONTRACTS — BREACH — EFFECT.

Where a contract of sale of the output of a mill for a fixed period is broken by the buyer, and the breach evinces an intention not to be bound by the stipulations whose nonobservance will so far defeat the consideration for which the seller entered into the contract, that to make the seller keep the agreement will amount to coercing him to perform on terms which he would not have accepted, he is released from his obligation, and may recover as though the contract had been carried out.

12. SALES (§ 62) — CONTRACTS — BREACH — EFFECT.

A contract for the sale of handles to be manufactured by the seller during a fixed period called for a variety of handles including one called "D-Stem." During a part of the period the seller manufactured and delivered several car loads of handles of the varieties called for. A car load composed of 37,000 handles, of which 32,000 were D-stems, was not taken by the buyer, on the ground that he was not obliged to take handles of the D-stem variety. Performance of the contract by the seller without manufacturing D-stem handles would entail on him a continual loss as a proportion of every load of timber worked up would be wasted. Held, that the buyer's repudiation of its obligation to accept D-stem handles operated to release the seller from his obligation, and he could recover as though the contract had been carried out.

13. SALES (§ 384) — CONTRACTS — BREACH — MEASURE OF DAMAGES.

Where a contract of sale of the output of a mill for a fixed period is so breached by the buyer as to release the seller from his obligation to perform, the measure of the seller's damages is the difference between the cost to him of manufacturing the goods and loading them on cars, as required by the contract, and the prices he was to receive for the goods.

14. PLEADING (§ 174) — JOINDER OF LEGAL AND EQUITABLE DEFENSES.

It is bad pleading, in an action at law, to join a defense of a legal nature with a defense of an equitable nature in a single count of the replication.

15. TRIAL (§ 10) — JOINDER OF LEGAL AND EQUITABLE DEFENSES.

Where the reply in an action at law joined in a single count a legal and an equitable defense and asked affirmative relief in connection with the equitable defense, the matter, in the absence of any objection to the pleading, must be heard and determined by the court.

16. CONTRACTS (§ 259) — FRAUD — EFFECT.

Where a party makes a promise to the adverse party without intending to perform it, but with a fraudulent design to obtain a contract from the adverse party by giving the promise and then breaking it, the adverse party may rescind on the ground of fraud.

Appeal from Circuit Court, Pemiscot County; Henry C. Riley, Judge.

Action by J. P. Laswell and others against the National Handle Company. From a judgment for plaintiffs, defendant appeals. Reversed and remanded.

Faris & Oliver, for appellant. Ward & Collins and W. S. C. Walker, for respondents.

GOODE, J.

Petition in two counts for damages for refusal to perform a contract. Defendant is a corporation now known as the National Handle Company, but formerly as the American Handle Company, under which title, on April 20, 1904, it entered into the following contract with plaintiffs, who were partners: "Articles of agreement, made and entered into this 20th day of April, 1904, by and between J. P. Laswell & Co. of Manila, Ark., of the first part, and the American Handle Company of Cleveland, Ohio, of the second part, represented by _____________. Witnesseth, that the party of the first part agrees to sell their entire output of handles made at their mill from date until July 1, 1905. Handles to be as near as possible to the requirements of the second party, and such as are named in their schedule, which is hereby attached and forms a part of this agreement. The second party agrees to buy said first party's handles for the time as stated above and will pay: 15 per cent. adance for XX; 10 per cent. advance for X and No. 1s, f. o. b. cars at Manila, 15¢ per 100 pounds freight allowed. Inspection to be made at first party's mill. Terms cash. J. P. Laswell & Co., by J. P. Laswell. American Handle Co., G. B. Durell, Treas."

Said contract had attached as part of it a schedule of the varieties and sizes of handles to be taken by the American Handle Company under it. The contract was executed in duplicate, and the schedule attached to the copy retained by defendant showed at the trial the species of handles known as "D-Stem" had been entirely erased, whereas the schedule attached to the copy retained by plaintiffs showed defendant was to accept from plaintiffs D-stem handles of certain kinds, but the printed provision for D-stem handles of other kinds had been struck out. Plaintiffs who lived at Campbell, Mo., moved to and established a mill at Manila, Ark., at a cost of $5,000, to manufacture handles and supply them to defendant pursuant to said contract, entered into an agreement with the owners of eight sections of land covered with ash timber suitable for handles, to buy the timber, and in other ways prepared to perform their contract. The arrangement between the parties required the handles manufactured by plaintiffs to be inspected by an inspector furnished by defendant, before defendant was bound to accept the output of plaintiffs' factory, and the course of action followed in performing the contract was for defendant to inform plaintiffs where to ship the handles after they had been manufactured; whereupon it became plaintiffs' duty to get suitable cars from the railway company, load the handles at their expense, and forward them according to defendant's directions. Defendant knew plaintiffs could not procure cars until they were able to notify the railway company what destination they were desired for, and this they could not tell until defendant advised them. Defendant company dealt in handles, its main place of business being at Ft. Wayne, Ind., though its correspondence was written from Cleveland, Ohio. From August to October, 1904, plaintiffs manufactured, sold, and delivered to defendant seven car loads of handles of varieties mentioned in the schedule, but another car load, which was composed of 37,000 handles, of which 22,000 were D-stems, was not...