Appeal from Circuit Court, Craighead County; Frank Smith, Judge.
McCULLOCH, C. J.
Plaintiff, Rudy Copeland, was engaged in business at Jonesboro, Ark., under the trade-name and style of Copeland Commission Company, and defendant, Majestic Milling Company, was operating a flouring mill at Aurora, Mo. On February 16, 1907, plaintiff gave a written order, which was accepted by defendant, for 1,000 barrels of flour, said order being in the following form:
"2-16-07
"Majestic Milling Company: Ship to Copeland Commission Co. at Jonesboro, Ark.:
How ship: 60 day shipment
Terms: Net A-L Att. Amt. $
1000 Bbl. Flour Base
Majesty 48 3.70
Show Me 48 3.30
Uncle Joe 48 2.70
Prince 48 Base 3.60
"Draw through Bank of Jonesboro.
"D. R. Bradford
"Copeland Com. Co
"By Rudy Copeland."
D. R. Bradford was defendant's agent, and solicited the order. There is no controversy as to the construction of the contract; it being conceded that, according to its terms, the flour was to be shipped within 60 days from date thereof. And it was understood that, in accordance with plaintiff's method of doing business, the flour was to be shipped to his order in car load lots whenever he gave shipping directions from time to time. About the time this contract was entered into plaintiff was given the exclusive right to sell defendant's flour in certain territory in northeastern
Arkansas and southeast Missouri. Another contract for 1,000 barrels of Majesty, the higher grade of flour, was entered into February 22, 1907, but no directions were ever given for shipments under that contract, and that feature of the case passed out in the trial below, and there is no controversy here concerning it. Defendant delivered a part of the flour — 360 barrels — under the contract of February 16th, and this action was instituted by plaintiff to recover damages for an alleged breach of the contract on the part of defendant in failing and refusing to deliver the remainder. Plaintiff recovered judgment below, and defendant appealed.
The point at issue in the trial below was whether or not defendant failed or refused to deliver the flour in accordance with the contract. Plaintiff contended that defendant was unable to perform the contract, and refused to do so. On the other hand, defendant contended that the failure to deliver the flour was due entirely to plaintiff's failure or refusal to give shipping directions.
The evidence shows that the grade of wheat used by defendant produced three grades of flour, which were branded "Majesty," "Show Me," and "Uncle Joe"; the proportion being 80 per cent. Majesty, 17 per cent. Show Me, and 3 per cent. Uncle Joe. It became necessary, therefore, for defendant to adjust its sales so as to conform to the proportion in which the several grades of flour were produced, otherwise the capacity of the mill would be overtaxed and storage space become congested with unsold grades. The capacity of the mill was 1,000 barrels per day. All of the transactions between the parties were conducted by written correspondence, and there is no dispute as to what passed between them. That part of the correspondence which reflects the conduct of the parties with reference to the alleged breach of the contract by defendant in failing or refusing to ship the flour occurred on and after March 14, 1907, and will be copied in full, except that the letters concerning an order for shipment of a car load to Jericho, Ark., on March 13th, which order was afterwards by agreement cancelled, are omitted. The correspondence related to a car load of flour ordered by plaintiff on March 14th to be shipped to Paragould, Ark., which he had sold to Bertig Bros.
"March 14th, 1907. Majestic Milling Co., Aurora, Mo. — Dear Sirs: Please ship us at once on our contract to Paragould, Ark., via Frisco and Cotton Belt:
50 Bbls. Show Me Flour in wood
75 " " " " 48's.
30 " " " " 24's.
"Please get the car in transit as soon as possible, and send all papers through the Bank of Jonesboro as usual. The customer to whom we have sold this flour has four other cars booked with us, and is one of our very best customers. We usually sell him ten cars at a time. He has been using Comet manufactured by the Eisenmeyer Milling Co., and is their second patent. He has also used a few cars of Bulte's Pelican which is his third grade. We have assured him that Show Me will come up to either of these flours, and if it does he will make us a splendid customer, and we hope we will not be disapointed in the quality of the goods. Yours truly, Copeland Commission Co."
"March 15th, 1907. Messrs. Copeland Commission Co., Jonesboro, Ark. — Gentlemen: Beg to acknowledge receipt of your specifications for two cars, one dated March 13th, and the other March 14th. These shipments will move on dates specified unless we have instructions to ship sooner from you. We do not see much change in the equipment situation. However, we are living in hopes though we may die in despair. We appreciate your kindness in furnishing the specifications early in order that we may be able to give you better service. Yours very truly, Majestic Milling Company."
"Aurora, Mo., March 21st, 1907. Messrs. Copeland Commission Co., Jonesboro, Ark. — Gentlemen: We are just in receipt of your wire of even date with reference to Paragould car. We immediately wired you `Badly oversold on Show Me. Do all can. Can't you change specifications any?' By way of explanation will state that our former manager, Mr. Wilson, used such extremely poor judgment and sold long on this special brand, which is causing us no end of trouble. We are gradually getting out of our cramped condition, and if you can in any way change the specifications of this car with some other brand we would certainly appreciate this. This will assist us greatly in giving prompt shipment. If you cannot do this, we will move car at the earliest possible moment. Yours very truly, Majestic Milling Co., W. H. Roark, Mgr."
"Aurora, Mo., March 26th, 1907. Messrs. Copeland Commission Co. Jonesboro, Ark. — Gentlemen: With reference to the car for Paragould to be shipped at once, we note that this is a straight car of Show Me, our extra fancy brand. Would like to ask if you can in some way use a portion of this car in some other brand, as we are in a very bad condition, and it will be impossible for us to fill this order promptly, as our mill is now full of flour of the high grade, and, in order to manufacture this special grade we are compelled to make more Majesty and we absolutely have not the room in which to put it. We would consider it a special favor if you could make some change in specifications and help us out on our badly congested condition. We would also be more than pleased to have some specifications on your 1,000 barrel order given us on February 22nd. For your information will state that our former sales manager, Mr. Wilson, sold us so long on this special brand as we have been doing everything in our power to work ourselves
out of this cramped condition, and have succeeded thus far fairly well. However, it seems that we have just about reached the climax, and if we cannot get some of our high patent moved, the Show Me orders are bound to receive some serious delay. [No signature.]"
"March 27th, 1907. Majestic Milling Co., Aurora, Mo. — Dear Sirs: Our customer at Paragould is unable to change specifications on car of flour. Therefore, we will thank you to make every possible effort to get car out as soon as possible, and oblige, Yours truly, Copeland Com. Co."
"Aurora, Mo. March 28th, 1907. Messrs. Copeland Com. Co. Jonesboro, Ark. — Gentlemen: With reference to your letter of the 27th inst., we will await further shipping instructions on the Jericho car as requested. We would, however, be pleased to move this car as soon as possible, as we are...
