Lawson v. M. Longo Fruit Company, a Corp.
| Decision Date | 06 July 1926 |
| Citation | 287 S.W. 796,220 Mo.App. 556 |
| Parties | C. P. LAWSON, J. E. LAWSON AND C. C. LAWSON, CO-PARTNERS DOING BUSINESS AS C. P. LAWSON & SONS, RESPONDENTS, v. M. LONGO FRUIT COMPANY, A CORPORATION, APPELLANT. |
| Court | Missouri Court of Appeals |
Appeal from the Circuit Court of the City of St. Louis.--Hon. Robert W. Hall, Judge.
REVERSED.
Judgment reversed.
Laughlin Frumberg, Blodgett & Russell for appellant.
(1) Where a petition alleges a contract of sale for delivery at point of shipment, and it appears that delivery was made to a railroad company under a shipper's order bill of lading there is a total failure of proof of the allegations of the petition. Hunter Brothers Milling Co. v. Stanley, 132 Mo.App. 308; Roaring Fork Potato Growers v. Clemons Produce Co., 193 Mo.App. 653; Turner Looker Co. v Heindman, 250 S.W. 88. (2) Where goods are not present at the place of sale the vendee has a right of inspection before acceptance. Pope v. Allis, 115 U.S. 363, 29 L.Ed. 393, 398; Schiller v. Blythe and Fargo Co., 15 Wyo. 304; Central Flour Mills Co. v. Gateway Milling Co., 213 S.W. 131; Kuppenheimer v. Wertheimer, 107 Mich. 77; McNeal v. Braun, 53 N. J. L. 617; Eaton v. Blackburn, 52 Ore. 300; Wallrice Milling Co. v. Continental Supply Co., 36 Utah 121; Pierson v. Crooks, 115 N.Y. 539; Gifford v. Wellman, 187 Mo.App. 29; N.W. Helm Feed & Coal Co. v. Butler County Milling Co., 269 S.W. 630. (3) The giving of an instruction not based upon the pleadings and the evidence is reversible error. Fisher v. Central Lead Co., 156 Mo. 479; Coleman v. Railroad Co., 36 Mo.App. 140; Warder v. Seitz, 157 Mo. 140; Henderson v. Kansas City, 177 Mo. 477; Matson v. Frazer, 48 Mo.App. 302; N. O. Nelson Mfg. Co. v. Mitchell, 38 Mo.App. 321; Bloom v. Pope, 36 Mo.App. 410. (4) The measure of damages of the vendee is the profits lost by a failure of the vendor to perform. American Pub. & Engr. Co. v. Walker, 87 Mo.App. 503; Rhodes v. Landon Lumber Co., 105 Mo.App. 279, 315.
S. C. Rogers for respondents.
(1) A written contract must be so drawn as to contain all provisions. Edmunds v. Cochrane, 226 S.W. 1007. The courts will not make contracts for the parties. Shouse v. Neiswaanger, 18 Mo.App. 250; Thornton v. Royce, 56 Mo.App. 182; Beatie v. Coal Co., 56 Mo.App. 230; Chouteau v. Russell, 4 Mo. 553. Evidence of usage cannot vary its terms. Keller v. Meyer, 74 Mo.App. 318. (2) A bill of lading is only prima-facie evidence of title which can be explained by extraneous evidence to show the real intent of the parties. Scharff v. Meyer, 133 Mo. 428. (3) By contract delivery can be made F. O. B. point of shipment, shipper's order bill of lading notify, with bill of lading endorsed and attached to draft and forwarded to destination for payment, and shipper retain ownership merely for the purpose of securing payment. 1 Williston on Sales, page 602, section 280-B; Lawder Co. v. Mackie Grocery Co., 97 Md. 1; Miller v. N. Y. Cent. R. R. Co., 205 A.D. 667, 200 N.Y.S. 287; Estis v. Harnden, 153 Mo.App. 381; Wheless v. Grocery Co., 140 Mo.App. 572; Bass v. Walsh, 39 Mo. 197; Dehner v. Miller, 166 Mo.App. 504; Williams v. Evans, Admr., 39 Mo. 201; Glass v. Glazer Bros., 91 Mo.App. 567; The Standard Casing Co. v. Cal. Cas. Co., 233 N.Y. 413. (4) The right of inspection may be waived by contract or otherwise. 2 Wissiston on Sales, page 1246, section 479; 2 Williston on Sales, section 470; Lawder Co. v. Mackie Grocery Co., 97 Md. 1. Strict performance of a contract may be waived and where buyer by his act causes the seller to do or refrain from doing something to protect himself, the buyer may become bound. Famechon v. Devore, 184 Mo.App. 577. The vendor has a reasonable time in which to complete a contract. Hudson et ux. v. Barnes, 278 S.W. 395. (5) Special or consequential damages cannot be recovered unless the party to be charged is notified of the purpose of the purchase so that seller can anticipate such liability. Shouse v. Neiswaanger, 18 Mo.App. 236; Morrow v. Railroad, 140 Mo.App. 200; 35 Cyc. 643; Martin v. Lumber Co., 167 Mo.App. 381. (6) Construction of a contract as to place of delivery of article sold is a question of law for the court. Williams v. Gray, 39 Mo. 201. The intention of parties to a contract must govern in determining the rights of the parties. Glass v. Glazer Bros., 91 Mo.App. 567.
On October 19, 1922, plaintiffs and defendant entered into a written contract whereby plaintiffs agreed to sell defendant a carload of Concord grapes, to be shipped to St. Louis, at the price of $ 70. per ton, f. o. b. New York. The sale was made by telegram dated October 18, 1922, and afterwards confirmed by what is known in the State of New York as the "Standard Confirmation of Sale," which agreement makes the standard rules and definitions of trade terms for the produce and vegetable industry appearing upon the reverse side of the said confirmation of sale a part of the contract.
The car was shipped from Brocton, New York, on the 18th of October, 1922, under a bill of lading by which plaintiffs consigned the shipment to themselves at St. Louis, with the notation to notify defendant. The bill of lading, with a draft for the price of the shipment, was sent to the Franklin Bank, St. Louis. There was no instruction given to the railroad over which the shipment was made, or to any connecting carrier giving defendant the right to inspect the car before payment of the draft or the taking up of the bill of lading.
The car arrived in St. Louis on October 24, 1922, and as soon as defendant was notified on that day of the arrival of the shipment it attempted to inspect the same, but inspection was refused by the railroad company. Defendant then called upon plaintiffs' brokers who had sold the car to it, and informed them that it had not been permitted to inspect the shipment. The brokers agreed to get the right of inspection for defendant immediately, but no notice was received on that day or the day following.
On October 24th the plaintiffs' brokers telegraphed plaintiffs to allow inspection quick, but received no answer to this telegram.
On October 25th the plaintiffs' brokers wired the plaintiffs: "If you don't instruct Cloverleaf Railroad allow Longo inspection tonight or in the morning he will refuse car."
On October 27th the brokers wired plaintiffs: "Longo rejects car grapes, could not inspect until late yesterday."
On the 26th of October plaintiffs telegraphed their brokers as follows:
On October 28th the brokerage firm wired plaintiffs:
Before the arrival of the car defendant had sold it to a customer, one Paul Poedeshi, of Kincaid, Illinois, at $ 80, ton f. o. b. shipping point, which would have yielded defendant a profit of $ 10 a ton on the shipment. This customer had come to St. Louis and refused to accept the car because of inability to inspect its contents, but waited over for three days in the hopes of being permitted to inspect it, and not being given such opportunity, refused to go on with his contract.
On October 24, 1922, plaintiffs wired to the agent of the Nickle Plate Railroad, St. Louis, Missouri, to allow inspection of the car, but defendant was not notified, and at that time the car had been delivered to the Terminal Railroad Association, and it was not until about 3:30 o'clock p. m., October 26, 1922, that defendant was notified that the contents of the car might be inspected. By this time it had already lost the sale of the car to Poedeshi, and they thereupon rejected the shipment.
Plaintiffs sued for the damages alleged to have been sustained by them on account of the failure of defendant to accept the shipment, and defendant, by its counterclaim, sought to recover its damages because of the failure of the plaintiffs to permit an inspection and thereby enable defendant to make the sale to its customer.
At the close of plaintiffs' evidence defendant asked a peremptory instruction that the plaintiffs were not entitled to recover on their cause of action, which request was denied by the trial court.
The jury returned a verdict for plaintiffs on their cause of action and also on defendant's counterclaim, and this appeal is from the judgment rendered upon said verdict.
Granting that plaintiffs adduced testimony tending to prove that under the agreement in writing entitled, "Standard Confirmation of Sale," the phrase, terms net cash payable, "regular" meant and was understood by the well established use and custom existing at the time of the execution of said agreement and of which both parties had knowledge at the time said agreement was entered into, that the sale was made for cash, the goods to be shipped f. o. b car at Brocton, New York, on a bill of lading issued by the carrier to the order of plaintiffs at St. Louis, Missouri, notify M. Longo Fruit Company, and attached to sight draft for the purchase price drawn on defendant at St. Louis as is alleged in plaintiffs' petition so that assuming without deciding that plaintiffs complied with the contract in shipping the car of grapes under shipper's order, notify bill of lading, yet nowhere in said, "Standard Confirmation of Sale" do we find anything that can be construed as a waiver on the part of the defendant of its right to inspect before receiving and accepting said shipment, and plaintiffs in their printed agreement concede that, "absent the contract of sale (Standard Confirmation of Sale)...
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