Methudy v. Ross

• Decision Date: 15 March 1881
• Citation: 10 Mo.App. 101
• Parties: LEOPOLD METHUDY ET AL., Plaintiffs in Error, v. JOHN ROSS ET AL., Defendants in Error.
• Court: Missouri Court of Appeals

10 Mo.App. 101

LEOPOLD METHUDY ET AL., Plaintiffs in Error,

v.JOHN ROSS ET AL., Defendants in Error.

St. Louis Court of Appeals, Missouri.

Mar. 15, 1881.

1. That a contract was to be subsequently reduced to writing is not proof that there was no final agreement between the parties.

2. When the agreement was to be reduced to writing, and there is no sufficient evidence from which its exact terms can be determined, it will be inferred that the understanding of the parties was that there was no contract until the terms were reduced to writing.

3. The giving of an ambiguous declaration of law in a trial before the court is not necessarily ground for a reversal.

4. In a trial before the court parties should ask declarations of law from which it can be determined what the court held as to the law, and what it found as to the facts.

ERROR to the St. Louis Circuit Court, BOYLE, J.

Affirmed.

D'ARCY & NAGEL, for the plaintiffs in error.

J. M. & C. H. KRUM and W. B. DOUGLAS, for the defendants in error.

BAKEWELL, J., delivered the opinion of the court.

This is an action for damages for breach of contract of sale of a lot of lumber. The cause was tried by the court without a jury, and the finding and judgment were for defendants.

The evidence showed that plaintiffs were lumber dealers in St. Louis; defendants were also lumber dealers, and one Leahey was a person engaged in logging. On September 6, 1879, Leahey owned a large quantity, altogether about two million six hundred thousand feet, of lumber, at Wausau, Wisconsin, of which a part was in logs in the river at that place, marked with Leahey's mark, and part dry lumber in piles. Defendants had made advances to Leahey on this lumber, and had taken as security a bill of sale of the lumber and a cotemporaneous written contract. The bill of sale was filed in the lumber inspector's office at Wausau. The cotemporaneous instrument was not so filed. On September 6th, which was Saturday, Scott, one of defendants, Methudy, one of plaintiffs, and Leahey, were at Wausau. Scott's deposition was read by plaintiffs. Scott testifies that he had written to Methudy about some lumber belonging to one Beebe; that at the day last named Methudy came to him at Wausau and asked to look at the Beebe lumber. Scott found that this lumber was sold, and advised Methudy to buy the Leahey lumber, saying that Leahey was there, and that he had better make the price and terms with Leahey. Witness then introduced Leahey to Methudy, and left them together talking of the trade until train ime. Witness was busy about other matters, and did not hear all the conversation. Methudy and Scott were going together for some miles on the railroad; and, as they were starting, it was stated to Scott that Leahey and Methudy had agreed upon the price, and that the details of the trade should be stated by Methudy to Scott on the cars. Scott understood that there was a conditional sale, provided Methudy could get transportation. Scott was to submit Methudy's proposition for terms of sale to Leahey on the next Monday night. On the train, Methudy made several propositions, as to which, Scott said that he thought they would not be accepted, as they were not equal to the purchase made of the Beebe lumber. At last Methudy made a proposition of which Scott took a memorandum, as follows: “Will pay, on each three hundred thousand as shipped, one-half cash for each, balance in ninety days; January 15, 1880, on lumber in pile, $2,000 and ninety per cent of the balance; give notes payable May 15th and June 15th--with interest after April 15th, at ten per cent per annum.” Scott was to draw the contract, if the trade was consummated, and to forward it to Methudy. On the 8th, Scott transmitted this proposition to Leahey. Leahey had possession of the lumber, and Scott represented to Methudy that he and Ross had an interest in the lumber for advances to Leahey. Methudy was to guarantee getting cars; and the whole details of the trade were to be settled by the contract to be written, subject to the conclusions of Leahey and Methudy.

Methudy swears that he did not know the lumber belonged to Leahey; that Leahey said very little during the conversation, though all three talked about the lumber; that the whole talk about the lumber ceased when Scott left; that Scott called it the Leahey lumber, but said he had a bill of sale of it; that Leahey said Scott had the selling of the lumber, and the terms must be made with him, and that he (Leahey) would consent to any terms made by Scott with Methudy, and that the proposition taken down by Scott on the cars was made by Scott, and taken down by Methudy, and that Scott said he would let Leahey know about it.

Scott says that he told Methudy, on leaving him, that he was going to be absent for eight days; that it would be useless to write to him; that he would submit the proposition to Leahey on Monday, and that Methudy should correspond with Leahey.

On Monday, the 8th, Scott wrote from Grand Rapids to Leahey, stating the terms as already set forth, and adding that Leahey is to take the chances of the cars, and will take the lumber on those terms if it can be shipped. On the same day Methudy sent a telegram from La Crosse to Leahey at Wausau: “I take lumber; have secured transportation;” and also dispatched to Scott at Grand Rapids: “I take Leahey's lumber; have transportation; push Warren.”

Leahey received Scott's letter on the 9th, and wrote that he would accept no such terms; that they were not the terms that Methudy and he had talked of and agreed to at Wausau, and directing Scott to notify Methudy of his refusal. He on the same day telegraphed Methudy & Meyer, at St. Louis: “Must have terms cash or notes with interest, and contract signed before shipping. Will you take lumber? Answer.” Leahey swears that the terms on which he gave his refusal of the lumber to Methudy on the 6th, were that the...