Lebrecht v. Miller

• Decision Date: 05 March 1917
• Docket Number: No. 12322.,12322.
• Parties: LEBRECHT v. MILLER et al.
• Court: Missouri Court of Appeals

192 S.W. 1050

LEBRECHT v. MILLER et al.

No. 12322.

Kansas City Court of Appeals. Missouri.

March 5, 1917.

Appeal from Circuit Court, Jackson County; William O. Thomas, Judge.

"Not to be officially published."

Action by L. G. Lebrecht, doing business as L. G. Lebrecht & Co., against Albert Miller and E. P. Miller, partners, doing business as Albert Miller & Co. From an order granting defendants a new trial after verdict for plaintiff, he appeals. Affirmed.

Hal R. Lebrecht and A. J. Bolinger, both of Kansas City, for appellant. Park & Brown, of Kansas City, for respondents.

BLAND, J.

This is a suit upon a written contract for the sale of potatoes; said contract being as follows:

                                             "Oct. 30, 1915
                

"Agreement between Albert Miller & Co. and L. G. Lebrecht & Co.:

"In consideration of such service and assistance as Lebrecht can give in buying Triumphs in Nebraska and in consideration of Lebrecht giving Miller all his orders for Nebraska Triumphs, Miller agrees to sell Lebrecht four cars of bulk Triumphs at fifty-five and two cars at seventy cents per bushel f. o. b. loading station, shipment to be made as soon as possible at Miller's option which Lebrecht agrees to buy and Lebrecht is to mail to Miller from Kansas City exchange for five hundred dollars on Nov. second, which is part of this agreement, loading

                weights.                  Albert Miller & Co
                

"The four cars may be shipped in two but must contain two thousand bushels."

On November 3, 1915, the plaintiff mailed to Albert Miller & Co. a check, being Kansas City exchange, for $500, and on the back of said check he wrote the following:

"Part payment on 2000 bushels at 55c. bushel and 1000 bushels at 70c. bushel choice Nebraska Triumph potatoes in bulk f. o. b. cars Hemingford, Nebraska district to be shipped in refrigerator cars in Nov. 1915."

In forwarding said check to Albert Miller & Co. plaintiff wrote the former a letter in which he used the same language as contained in the writing on the back of the check. Thereafter, on November 11, 1915, the defendants wrote plaintiff a letter, stating:

"We return your check for five hundred dollars as we do not care to make the contract you have written on the back of it. * * * You will be advised as you have not kept your part of the contract that it is null and void."

In the lower court plaintiff recovered the sum of $1,200 as damages for the failure of defendants to ship the potatoes, as required by their said contract of October 30, 1915. The court below granted defendants' motion for a new trial on the ground that he should have sustained the demurrer to the evidence. At the trial the contention of plaintiff was that the writing on the back of said check did not materially change the contract between plaintiff and defendants, and for that reason the defendants had no right, upon the receipt of said check, to treat the contract as null and void. The writing on the back of the check changed the contract in three respects (1) There was no specification in the contract as to the quality of the potatoes; on the back of the check the quality was specified to be "choice." (2) In the contract there was no stipulation as to the kind of cars in which defendants were to ship the potatoes, while on the back of the check it was stated the potatoes should be shipped in refrigerator cars. (3) The contract provided that the potatoes were to be shipped as soon as possible at defendants' option, while the writing on the check provided that the shipment was to be made in November, 1915.

As a demurrer to the evidence admits as true every fact which the testimony tends to prove and every inference that may be reasonably drawn therefrom, it is our duty to take all the evidence in its most favorable light to plaintiff.

The evidence shows that Triumph potatoes were grown in certain districts in Nebraska and Minnesota for seed purposes, and that they were used for such in Texas and adjoining states; that there were several grades of such potatoes designated as "choice," "fancy," "extra fancy," and "field run." Under the terms of the contract defendants were required to ship sound and merchantable potatoes. Atkins Bros. Co. v. Southern Grain Co., 119 Mo. App. 119, 95 S. W. 949.

In the court below plaintiff introduced a great deal of testimony on the point that there was no material variation between that demanded by plaintiff and the terms of the original contract.

The evidence shows that "choice" potatoes were the lowest grade of merchantable potatoes, and the plaintiff contends that under the contract he had a right to demand at least the lowest grade of potatoes. The record in this case is almost entirely made up of testimony as to the meaning of the words "choice potatoes." It is a rule that where words in a contract are not used in their ordinary and usual sense, the meaning of such words may be shown by parol testimony. Evans v. Western Brass Mfg. Co., 118 Mo. 548, 24 S. W. 175. In that part...