Majestic Milling Co. v. Copeland
| Decision Date | 10 January 1910 |
| Citation | 124 S.W. 521,93 Ark. 195 |
| Parties | MAJESTIC MILLING COMPANY v. COPELAND |
| Court | Arkansas Supreme Court |
Appeal from Craighead Circuit Court; Frank Smith, Judge; reversed.
Judgment reversed and cause remanded.
Hawthorne & Hawthorne, for appellant.
This suit was instituted on the theory that plaintiff had given specifications for all the flour, and that defendant had refused to ship. On the trial of the cause it developed that all specifications given by plaintiff were promptly filled except the Jericho car, which was cancelled by plaintiff, and the Paragould car, which was delayed by defendant for a time but promptly shipped after a slight change in the specifications by plaintiff. The court then permitted plaintiff to change his theory and amend his allegations so as to predicate a breach on the defendant's part upon the failure to ship the Paragould car promptly. Although this was error, the evidence failed to establish a breach by defendant, even under this theory. Benj. Sales, § 568; 33 P. 266; 39 S.E. 410. Moreover, if it be conceded that defendant did breach the contract, plaintiff did not elect to declare a breach and sue for his damages. By waiving the delay, plaintiff lost his right to maintain an action for the failure to ship until he could show that he gave specifications for all the cars called for by his contract. 178 U.S. (44 L. Ed.) 953; 7 A. 98; 55 A. 599; 52 S.E. 829; 15 Wall. 36; 30 L. R. A. 33 and notes; 85 Ark. 596; 87 Ark. 52 101 S.W. 128; 147 F. 532; 4 Ark. 532. Defendant had the entire sixty days in which to ship the flour, under the contract. It could not be guilty of a breach until it failed to ship within that time. 117 U.S. 490; 21 Ohio 114; 61 N.Y. 643; 75 Pa. 138; 18 Ill. 155.
Lamb & Carraway, for appellee.
1. Defendant violated the contract by disabling itself from performing it. Beach, Cont. § 403; 2 Mechem on Sales, 1097; 13 Minn. 264; 43 N.J.L. 512; 93 N.Y. 576; 54 Cal. 228; 76 Md. 9, S. C. 20 A. 127; 111 U.S. 264; 121 U.S. 264; 103 U.S. 146; 72 A. 301. Plaintiff was not thereafter under obligation to give further shipping directions or to tender performance in any way. 92 Ark. 111; 13. Minn. 264; 53 N.Y. 115; 43 N.J.L. 511; 93 N.Y. 576; 17 Kan. 271. Defendant by its contract rendered it practically impossible for plaintiff to proceed further under the contract. 85 Ark. 596.
2. Appellee did not waive the breach of which appellant was guilty. Appellee's leniency cannot be construed as a waiver. 2 Mechem on Sales, 1071-4; 15 Ia. 555; 81 N.Y. 419; 47 N.E. 1020; 104 U.S. 252; 41 N.E. 561. Nor was his acceptance of appellant's deficient performance so unconditional and voluntary as to constitute a waiver. 2 Mechem, 1078; 72 N.W. 25; 65 N.W. 980; 39 N.E. 814, 17 C. C. A. 34; 5 N.D. 432, S. C. 67 N.W. 208. Whether or not appellant broke the contract, and whether or not appellee waived the breach, were proper questions for the jury, and their finding supported by ample evidence, is conclusive. 67 N.W. 208.
3. Appellant's theory of the case is erroneous, and the rulings of the court as to instructions were correct. 55 A. 599.
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 one thousand barrels of flour, said order being in the following form:
How ship: 60-day shipment.
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 sixty 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 carload 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 one thousand 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 16, 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 one thousand 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 carload to Jericho, Ark., on March 14, which order was afterwards by agreement cancelled, are omitted. The correspondence related to a carload of flour, ordered by plaintiff on March 14 to be shipped to Paragould, Ark., which he had sold to Bertig Brothers.
50 Bbls. Show Me Flour in wood:
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