Lindsborg Milling & Elevator Company v. Danzero

• Decision Date: 20 March 1915
• Citation: 174 S.W. 459,189 Mo.App. 154
• Parties: LINDSBORG MILLING & ELEVATOR COMPANY, Appellant and Respondent, v. DOMINO DANZERO, Respondent and Appellant
• Court: Missouri Court of Appeals

174 S.W. 459

189 Mo.App. 154

LINDSBORG MILLING & ELEVATOR COMPANY, Appellant and Respondent, v. DOMINO DANZERO, Respondent and Appellant

Court of Appeals of Missouri, Springfield

March 20, 1915

Appeal from Greene County Circuit Court.--Hon. Guy D. Kirby, Judge.

AFFIRMED (in part) AND REVERSED AND REMANDED (in part.)

Sebree & Orr for appellant.

(1) The contract being in writing and definite in its terms and calling for "Golden Eagle," a well known brand of flour manufactured by plaintiff, there was no implied warranty that the flour was suitable for the defendant's purpose, and plaintiff complied with the contract by sending "Golden Eagle" flour. Mechem on Sales, sec. 1349; Benjamin on Sales, sec. 657; Parsons on Contracts, sec. 589; 35 Cyc., secs. 400-4; Jones v. Just, L. R., 3 Q. B 197, Leading case; Marks v. Williams Cooperage Co., 103 S.W. 20; Fairbanks, Morse & Co. v. Baskett, 71 S.W. 1118; Seitz v. Refrigerating Machine Co., 141 U.S. 510; Grand Avenue Hotel v. Wharton, 79 F. 43; Beggs v. Hanley Brewing Co., 62 A. 373; Dounce v. Dow 64 N.Y. 411; Healey v. Brandon, 21 N.Y.S. 390; Warren Glass Wks. Co. v. Keystone Coal Co., 5 A. 253; Fraley v. Bispham, 10 Pa. 320; Ivans v. Lowry, 50 A. 355; Milwaukee Boiler Co v. Duncan, 87 Wis. 120. (2) Under the pleadings and the undisputed testimony the finding of the court should have been for the appellant. See authorities under 1. (3) Under the facts found by the court the judgment should be for the plaintiff on its cause of action and against the defendant's counterclaim. See authorities, under 1.

Wright Bros. for respondent.

(1) The plaintiff breached the contract by shipping flour inferior in quality to that provided in the contract, and having so breached, the defendant was under no obligation to accept any flour thereafter shipped. Ungerer & Co. v. Cheese & Fish Co., 155 Mo.App. 95, 107; Norris v. Letchworth, 167 Mo.App. 553, 557; Felix v. Bevington, 52 Mo.App 403; Crews v. Garneau, 14 Mo.App. 505; Webb v. Steiner, 113 Mo.App. 482; Davis v. Barada, 115 Mo.App. 327. (2) The defendant was excused from further performance on his part because of plaintiff's prior breach. Ungerer & Co. v. Cheese & Fish Co., 155 Mo.App. 95, 107; Morrison v. Leiser, 73 Mo.App. 95; Tiedeman on Sales, sec. 209. (3) Defendant did not breach his contract; the contract was breached by plaintiff by the shipment of inferior flour prior to the time defendant gave notice that he would receive no further shipment. Ungerer & Co. v. Cheese & Fish Co. , 155 Mo.App. 95, 107. (4) Plaintiff must show substantial performance on his part. Morrison v. Leiser, 73 Mo.App. 95, 98; Norris v. Letchworth, 167 Mo.App. 557.

ROBERTSON, P. J. Farrington and Sturgis, JJ., concur.

OPINION

ROBERTSON, P. J.

--Plaintiff instituted this action to recover damages on account of defendant's alleged failure to comply with a contract to purchase flour. The defendant answered alleging plaintiff's failure to comply with the contract and asked damages by way of a counterclaim. A trial, without a jury, resulted in a finding of facts upon which a judgment was entered denying each of the parties any relief sought under their respective pleadings, and both parties have appealed.

The parties entered into a written contract at Springfield, this State, under date of August 12, 1912, stating that the plaintiff, of Lindsborg, Kansas, sold and the Domino Bakery, the name under which defendant was doing business as a baker, of Springfield bought 2015 barrels of Golden Eagle brand of flour at a price therein designated and to be shipped in installments as therein provided. The only point made here for our consideration is as to the sufficiency of the finding of facts to support the judgment. The contract stands admitted. Two shipments of two cars each were made to defendant.

The trial court found "That the first two named shipments of said flour met the requirements as to quality of the contract, and the last two named shipments, shipments of November first and December first, were deficient in quality; the first flour contained in said shipments was not reasonably fit for the purpose for which it was designated, to-wit, to bake bread of."

Then follows a recital as to the complaint of the defendant to the plaintiff about the character of the two last shipments and the court proceeds:

"The court finds also that this flour was tried by the defendant in his bakery, according to the tests and trials which he gave it as established by two of his former employees, the flour failed to meet his requirements as to quality on the contract expressed and implied. The court finds these last two cars of flour were deficient, and on account thereof, the defendant refused to accept any more flour under the contract, and advised the plaintiff of said refusal and cancelling of said contract."

After reciting what the parties did concerning the last cars after defendant refused to accept them the findings of facts conclude as follows:

"The court finds this flour of these last two shipments which defendant refused to receive was Golden Eagle Flour, that is, the flour called for by the contract.

"The court finds against the defendant on his counterclaim for the reason there is not sufficient evidence of his damage to warrant the court in rendering judgment for him."

We have italicized certain portions of the above quotations so that the material parts thereof may be readily observed.

Preliminary to the consideration of the main point involved we shall dispose of the suggestion of the defendant that the testimony discloses that the term "Golden Eagle" flour has no distinctive individual significance but that it was nothing more than a name placed upon the receptacle for the flour and signified no particular grade. The defendant is clearly mistaken as the testimony discloses that it did designate a particular brand and grade distinct from the other brands handled by the plaintiff, "due to the difference in the milling of it." Defendant's confusion arises from the fact that one of plaintiff's witnesses upon this question stated that any kind of flour could be put in "White Duck Sack or Golden Eagle Sack," if it were desired, but he did make it clear that Golden Eagle flour, commercially possessed a peculiar quality of its own, and had "been on the market for years."

There is nothing in the testimony nor in the finding of facts that discloses that the defendant trusted to the judgment of the plaintiff to do anything further than to furnish him (defendant) this particular brand of flour; neither is there anything to disclose that the defendant informed the plaintiff that he was seeking to make any particular kind of bread or pastry as the result of this contract.

Considering the finding of facts most favorable to the plaintiff we have these points:

(1) That the last two shipments were not reasonably fit for the purpose for which they were designated, "to-wit, to bake bread."

(2) That this flour was tested by defendant and failed to meet his requirements as to quality on the contract expressed and implied and was deficient.

(3) These last two shipments were Golden Eagle flour called for by the contract.

It will thus be noticed that (1) and (3) of the finding are apparently inconsistent. The one designated as (2) may be eliminated as having no bearing on the case because it simply finds that the flour failed to meet defendant's requirements, which should be no criterion from which to determine if he complied with the contract, and the assertion in (1) that it was deficient is so general and indefinite as not to justify us in concluding that the two shipments did not come up to the standard of this brand, as we can as well conclude therefrom that this term was used by the trial courts as a conclusion resulting from a comparison of this particular brand with flour and other brands in general. It must be held that what is said in (1) as to the shipments containing flour not reasonably fit for the purpose for which it was intended applies, as is also shown by what is said in (2), to defendant's contention exclusively, otherwise (3) would be meaningless, unless we say that Golden Eagle flour would not make bread, which would be contrary to all of the testimony and the finding that the first two shipments met the requirements of the contract, and hence was such flour. We think that the decision of this case must rest upon the finding which we have designated as (3), not only because it is evidently the final summing up by the court of the facts which were deemed material, but it is the only one that is unambiguous and evidently intended to make clear this one point that may have otherwise been somewhat beclouded by the previous statements. What the court undoubtedly intended to do was to base the judgment on the fact that the plaintiff in furnishing this brand did not furnish flour that was reasonably fit for the purposes for...