Laswell v. National Handle Company
| Citation | 126 S.W. 969,147 Mo.App. 497 |
| Parties | J. P. LASWELL et al., Respondents, v. NATIONAL HANDLE COMPANY, Appellant |
| Decision Date | 22 March 1910 |
| Court | Court of Appeal of Missouri (US) |
Appeal from Pemiscot Circuit Court.--Hon. Henry C. Riley, Judge.
REVERSED AND REMANDED (with directions).
Judgment reversed and cause remanded.
Faris & Oliver for appellant.
(1) The court erred in refusing to admit relevant and competent testimony offered by the appellant. Type Foundry v Printing Co., 3 Mo.App. 149; Strother v. Lumber Co., 200 Mo. 647. (2) The court erred in admitting irrelevant and incompetent testimony offered by the plaintiffs. The plaintiffs were permitted to say over the objections of defendant what timber they had lost on account of the alleged breach of the contract by defendant in failing to take vi et armis the car of "junk." These matters were not such damages as occurred from the alleged acts of defendant. They were in no sense such as grew out of defendant's failure to accept the carload of "D-stems" and pay for the same. In short, they were not approximate damages, or such as could have been foreseen by defendant, from its mere failure to take a carload of handles from under the plaintiffs' mill shed and pay $ 530 for them. Applegate v. Franklin, 109 Mo.App 293; Grattis v. Railroad, 153 Mo. 380; Fontaine v. Lumber Co., 109 Mo. 55; Saunders v. Brosius, 52 Mo. 50; Insurance Co. v. Boone, 95 U.S. 130; Tucker v. Railroad, 133 Mo.App. 129. (3) The court erred in overruling the objection to the offering of any testimony in this case. The petition did not set out any cause of action. The first count was for certain handles confessedly agreed to be delivered on board cars by plaintiffs, but which the petition avers were never taken received or accepted by the defendant; but the petition, though counting as upon a complete sale and delivery, does not aver that said handles were ever loaded upon cars or offered to the defendant, as the contract pleaded specifically required and bound them to deliver same, i. e., f. o. b. cars. It is elementary law that under this state of facts as set out in the petition by specific allegation and inference, there was no sale, no delivery, the title never passed to defendant and plaintiffs are not entitled to recover as upon a sale. Stresovich v. Kesting, 63 Mo.App. 57. For aught that appears, the prices may have risen on handles, and then instead of defendant's action injuring them, it might have been a blessing to plaintiffs in disguise. They could not by their own action or inaction increase the damages of defendant. Peck & Co. v. Roofiing Co., 96 Mo.App. 212; Dietrich v. Railroad, 89 Mo.App. 36; Mahoney v. Kansas City, 106 Mo. 39; Field on Damages, p. 19. (4) The court erred in overruling defendant's demurrer to the evidence, offered at the close of plaintiffs' testimony, and again offered at the close of all the evidence in the case. Lewis v. Insurance Co., 61 Mo. 534. (5) The court erred in instructing the jury, at the request of plaintiffs, as it did. (a) There was no proof upon which to bottom instruction No. 1, as given for plaintiffs. The mere absence of shipping directions did not, under the contract, furnish any legal excuse for the plaintiffs' default. This instruction improperly states the measure of damages. Had the defendant unlawfully taken the handles and converted them to its use, plaintiffs could have treated such conversion as a sale and recovered full value of the handles on a quantum meruit, but we are at a loss to see how the plaintiffs could do this under the facts here. Lumber Co. v. Warner, 93 Mo. 388; Halliday v. Lesh, 85 Mo.App. 285; Cobb v. Whitsett, 51 Mo.App. 146. (b) Instruction No. 2, given by the court for plaintiffs, is not the law under the facts here. The contract says the handles were to be delivered f. o. b. cars at Manila, Arkansas. It is not ambiguous and cannot be construed in the light of the acts of the plaintiffs. Bader v. Mill & Lumber Co., 134 Mo.App. 135; Brewing Co. v. Water Works, 34 Mo.App. 49; Drug Co. v. Saunders, 70 Mo.App. 221; Gas Co. v. St. Louis, 46 Mo. 121. (c) Instruction No. 3 states no legal measure of damages. Defendant, as has already been earnestly insisted, was not liable for hypothetical damages and loss of hypothetical profits arising from the unnecessary idleness of plaintiffs' mill. Peck & Co. v. Roofing Co., supra. (d) Instruction No. 4. for plaintiffs, as given by the court, is afflicted with the same vice as instruction No. 3, above discussed, and what is there said applies here. (e) Instruction No. 5, given for plaintiffs, is, appellant submits, vicious for many reasons: It leaves to the jury the duty of construing the contract; it leaves to the jury the question of law as to the legal effect of the contract, when both of these questions were for the court. Carroll v. Campbell, 110 Mo. 557; Miller v. Dunlap, 22 Mo.App. 103; Spalding v. Taylor, 1 Mo.App. 34; Albert v. Bessel, 88 Mo. 150. It leaves to the triers of fact the decision of a wholly equitable question of fraud in the making of the contract. The defense of fraud in making the contract was one solely for the court and not for the jury. The court possibly, upon a proper pleading and a proper case-made, may have found whether or not the contract was fraudulent, or procured by fraud. And so finding, he should have stated to the jury such finding, and not left the matter to them for their finding. Hancock v. Blackwell, 139 Mo. 440; Och v. Railroad, 130 Mo. 27; Homuth v. Railroad, 129 Mo. 629; Courtney v. Blackwell, 150 Mo. 245. (6) Instruction four, refused by the court, should have been given. There was present more than an inference that the sole cause of plaintiffs' ceasing operations came from pressure exerted by their many creditors, and this action is a happy afterthought, entered into for speculative purposes by them. At least defendant was entitled to have the matter go to the jury. Standfield v. Loan Assn., 53 Mo.App. 595; Cahn v. Reid, 18 Mo.App. 115.
Ward & Collins and W. S. C. Walker for respondents.
(1) Respondents had the right to recover the full value of the carload of handles not shipped. Mugan v. Regan, Super Wells & Co., 48 Mo.App. 463; Lumber Co. v. Warner, 93 Mo. 374; Bean v. Miller, 69 Mo. 384. (2) Respondents had the right to recover damages for profits they would have made if they had continued manufacturing up to July 1, 1905. Lumber Co. v. Warner, 93 Mo. 374; Mfg. Co. v. Railroad, 29 Mo.App. 526; Wiggins F. Co. v. Railroad, 73 Mo. 389; Samuel Peltz v. Augustus Eichele, 62 Mo. 171; Chapman v. Railroad, 146 Mo. 481; Hansard v. Clothing Co., 73 Mo.App. 584; Miller v. Shoe Co., 26 Mo.App. 57; 7 Am. and Eng. Ency. of Law (2 Ed.), p. 150. (3) The failure of appellant to accept and pay for the carload of handles which was the basis of recovery under the first count of the petition was sufficient justification for respondents to permit the mill to lie idle or to cease manufacturing. Lumber Co. v. Warner, 93 Mo. 389; Bertold v. St. L. E. Con. Co., 165 Mo. 305; Chapman v. Railroad, 146 Mo. 494; Gabriel v. Brick Co., 57 Mo.App. 526.
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:
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, Missouri, moved to and established a mill at Manila, Arkansas, at a cost of five thousand dollars, 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...
To continue reading
Request your trial