Missouri & Illinois Coal Co. v. Consolidated Coal Co.

• Decision Date: 19 November 1907
• Citation: 127 Mo. App. 320,105 S.W. 682
• Court: Missouri Court of Appeals
• Parties: MISSOURI & ILLINOIS COAL CO. v. CONSOLIDATED COAL CO. OF ST. LOUIS.

105 S.W. 682

127 Mo. A. 320

MISSOURI & ILLINOIS COAL CO. v. CONSOLIDATED COAL CO. OF ST. LOUIS.

St. Louis Court of Appeals. Missouri.

November 19, 1907.

Rehearing Denied. December 3, 1907.

1. SALES—BREACH OF CONTRACT—MEASURE OF DAMAGES.

Where coal of a certain grade is sold, and coal of inferior grade is delivered, the measure of damages is the difference in the prices of the grades.

2. SAME—MISTAKE.

Where coal of a certain grade is sold and coal of an inferior grade is delivered, the fact that the inferior coal was delivered by mistake does not relieve the seller of his liability for the damages sustained.

3. ACCORD AND SATISFACTION — EVIDENCE — SALES.

In an action for the price of coal sold and delivered evidence considered, and held sufficient to sustain a finding of an accord and satisfaction between the parties, for the amount sued on, by reason of the delivery of an inferior quality of coal.

4. SAME — PAYMENT OF PART OF LIQUIDATED INDEBTEDNESS.

Where coal of a certain grade is sold and delivered to a purchaser, and a liquidated indebtedness arises for the contract price, a settlement between the parties, whereby a portion of the purchase price is discharged by reason of the inferior quality of the coal, is a valid accord and satisfaction, and supported by sufficient consideration.

5. TRIAL—TRIAL BY COURT—DECLARATION OF LAW.

Where there is a controversy as to the quality of coal delivered during several months, and the real issue in a suit to recover the purchase price of the coal delivered during two of the months is whether there was an accord and satisfaction discharging a portion of the price of the coal, it is immaterial that a declaration of law given by the court mistakenly assumed that there was evidence of a controversy as to the amount due for coal sold during the two months.

Appeal from St. Louis Circuit Court; O'Neill Ryan, Judge.

Action by the Missouri & Illinois Coal Company against the Consolidated Coal Company of St. Louis for the price of coal. From a judgment for defendant, plaintiff appeals. Affirmed.

L. P. Crigler, for appellant. W. S. Forman, Boyle & Priest, and E. T. Miller, for respondent.

GOODE, J.

This is an ordinary action in assumpsit for a balance alleged to be due on coal sold and delivered to the defendant by plaintiff. The balance is claimed on account of sales during the months of December, 1904, and January, 1905, and the amount claimed is $901.32. The defense is an accord and satisfaction alleged to have been entered into on or about February 13, 1905. Plaintiff company had made a large number of sales to defendant during the months of September, October, and November, 1904, and those deliveries had been paid for in full. The purchases were of lump coal; that is, coal which had been run through a screen and the dust and smaller lumps taken out. In January, 1905, the officers of the defendant company, according to their testimony, ascertained that a considerable portion of the coal delivered was what is known as "mine-run coal," which never had been screened and was worth in the markets 15 cents a ton less than the lump, or screened, coal. Complaints were made by some of defendant's customers of the quality of the coal, and for this reason payment for the December, 1904, deliveries was withheld. Several demands were made by the plaintiff for payment, with the threat that, if the account was not paid, it would be put in the hands of an attorney for collection. The defendant company refused to make payment until an agreement was reached by which it would be allowed the difference between the price of lump coal and the mine-run coal, which had been received.

On or about February 13, 1905, after considerable correspondence, a meeting was arranged between W. S. Scott, vice president of the plaintiff company, and W. Schmick, general sales agent of the defendant, to talk over the dispute, and, if possible, adjust it. There is a conflict of testimony as to what occurred at that meeting. According to Schmick he had ascertained definitely that 85 cars of mine-run coal had been delivered by the plaintiff subsequent to November, 1904. Scott had been previously notified that defendant claimed the 85 cars were not up to contract. Schmick claimed, further, that the same proportion of mine-run coal had been delivered during the months of September, October, and November, but that they had been unable to identify the particular cars of inferior coal delivered during those months. He swore that he and Scott finally agreed to fix the total number of cars of mine-run coal which plaintiff had delivered to defendant during all the months at 170, containing on an average 35 tons each, and to allow defendant a deduction of 15 cents a ton from plaintiff's bill for the December and January deliveries. The total amount of the deduction was $892.50, which, in connection with a small credit defendant was entitled to for overweight ($8.82), equaled the balance claimed by plaintiff on its December and January deliveries, to wit, $901.32. It should be stated that the value of the coal delivered during those months was $16,124.62, but defendant had made...