Luckey v. St. Louis & S. F. R. Co.

• Decision Date: 16 November 1908
• Citation: 133 Mo. App. 589,113 S.W. 703
• Court: Missouri Court of Appeals
• Parties: LUCKEY v. ST. LOUIS & S. F. R. CO.

113 S.W. 703

133 Mo. App. 589

LUCKEY v. ST. LOUIS & S. F. R. CO.

Kansas City Court of Appeals. Missouri.

November 16, 1908.

1. CONTRACTS (§ 245) — ACTION FOR BREACH — ACTION ON ORAL AGREEMENT AFTERWARDS REDUCED TO WRITING.

When damages have accrued through breach of a verbal agreement, and there is no waiver or disclaimer of such breach in a subsequent writing, an action will lie on the verbal agreement, notwithstanding the subsequent writing.

2. CONTRACTS (§ 15) — REQUISITES — MEETING OF MINDS.

To constitute a binding contract, there must be a meeting of the minds of the parties; they must assent to the same thing in the same sense.

3. CARRIERS (§ 104) — CARRIAGE OF GOODS — SPECIAL CONTRACTS — ACTIONS FOR BREACH — EVIDENCE.

Evidence held insufficient to show that a carrier's agent promised plaintiff that a refrigator car ordered would arrive on a particular train.

Appeal from Circuit Court, Jasper County; Howard Gray, Judge.

Action by N. J. Luckey against the St. Louis & San Francisco Railroad Company. Judgment for plaintiff, and defendant appeals. Reversed.

W. F. Evans and Woodruff & Mann, for appellant. D. H. Kemp and R. H. Davis, for respondent.

JOHNSON, J.

Plaintiff shipped a car of strawberries from Exeter, Mo., to Omaha, Neb., over defendant's line of railroad. Being of a highly perishable nature, the property was practically ruined by being kept a day at the receiving station without refrigeration. Plaintiff alleges in his petition that this delay and consequent injury were caused by the breach, on the part of defendant, of an oral contract to procure a refrigerator car properly iced for plaintiff's use at Exeter at a specified time, and the prayer is for the recovery of the damages sustained by plaintiff in consequence of said breach of contract. Defendant denies the existence of such contract, and the issue thus raised by the pleadings was submitted to the jury as one of fact. Verdict and judgment were in favor of plaintiff, and the cause is here on the appeal of defendant.

A written contract of affreightment, under the terms of which the transportation was effected, was introduced in evidence; but it is not contended by defendant, nor do we find, that it contains an agreement on the part of plaintiff waiving the damages he claims accrued under the prior oral contract alleged. In such cases, the rule is well settled that "if damages have accrued under a verbal contract, and there is no waiver or disclaimer of such breach in the subsequent writing, an action may be maintained on the verbal agreement, notwithstanding there was a subsequent writing." Hoover v. Railway, 113 Mo. App. 688, 88 S. W. 769; Fountain v. Railway, 114 Mo. App. 676, 90 S. W. 393. But defendant insists that the evidence of plaintiff does not tend to show the existence of the oral contract pleaded, and that, as the breach of such contract is the gravamen of the action, there was no issue of fact to submit to the jury, and defendant's request for a peremptory instruction should have been granted.

It appears from the evidence that, to transport the berries to Omaha without serious damage to them, it was essential that they be loaded within a few hours after their picking in a refrigerator car properly iced. Plaintiff, knowing that defendant did not keep cars of this class at Exeter, and would have to send the car he needed from a division point, appeared at the station at Exeter on June 6, 1904, at about 7 o'clock in the morning, and requested the agent to order the car. On direct examination, he testified that the agent accepted the order and told him the car would be down on a local freight train due to arrive that morning from Monett, a division station 19 miles distant. The car did not come on...