Mosby v. Smith
| Decision Date | 21 February 1916 |
| Citation | 186 S.W. 49,194 Mo.App. 20 |
| Parties | GEORGE A. MOSBY, Appellant, v. J. W. SMITH, L. S. GAINES, and W. O. B. SMITH, Respondent |
| Court | Kansas Court of Appeals |
Appeal from Jackson Circuit Court.--Hon. Frank G. Johnson, Judge.
AFFIRMED.
Judgment affirmed.
Erasmus C. Hall for appellant.
Deatherage & Creason for respondents.
--Plaintiff sued defendants J. W. Smith, L. S. Gaines and W O. B. Smith, partners doing business at Kansas City in the name of Smith & Gaines, for a breach of the following written contract:
Parties of the first part agree to sell and deliver f. o. b. cars Bovena, Texas, about 900 2-year-old steers recently contracted by L. S. Gaines from Van Natta Bros. Said cattle known as the V brand of cattle, branded on left jaw and thigh.
Party of the second part has paid six thousand ($ 6000) dollars receipt of which is hereby acknowledged, and is to pay forty-seven dollars and fifty cents ($ 47.50) per head for cattle received and delivered on or before Oct. 20, 1912, as per contract.
At the time of delivery of said cattle, party of the second part is to pay McNetta Bros. forty-five dollars ($ 45) per head, less five thousand ($ 5000) dollars and to pay Gaines & Smith two dollars and fifty cents ($ 2.50) per head for all cattle received, less one thousand dollars ($ 1000).
The petition alleges that defendants delivered 687 head of the cattle described in the contract on October 20, 1912, and agreed to deliver the remaining 213 head in the following Spring, but failed and refused to perform that agreement. The value of the cattle not delivered is alleged to be $ 64.50 per head, and the damages claimed are $ 17 per head, the difference between the contract and market values at the time and place for delivery. In addition to filing an answer which set up defenses, the nature of which will be disclosed in our review of the case, defendants filed a counterclaim for $ 717.50, due and payable on the purchase price of the 687 head of cattle delivered. The verdict of the jury was for defendants on both the cause of action pleaded in the petition and on the counterclaim and in due course of procedure plaintiff brought the case to this court by appeal.
Defendant Gaines lived at Glazier, Texas, where he was engaged in the banking business and represented the interests of defendants who were dealers in cattle and had an office at the Stock Yards at Kansas City. On August 17, 1912, Gaines, on behalf of defendants, entered into a contract in writing with Van Natta Brothers, the proprietors of a cattle range of 200,000 acres or more in Bailey county, Texas, for the purchase of the two-year-old steers on that range which were branded V on the left thigh. The contract was as follows:
Amarillo, Texas, Aug. 17, 1912.
"WITNESSETH, this agreement made by and between Van Natta Bros. of Amarillo, Texas, parties of the first part, and Smith and Gaines of Glazier, Tex., parties of the second part:
WITNESSETH, that said Van Natta Bros. parties of the first part, for and in consideration of five thousand dollars paid in hand the receipt of which is hereby acknowledge, agree to sell parties of second part nine hundred two-year-old steers more or less branded V on left thigh situated on said Van Natta Bros. ranch in Bailey county, Texas, at forty-five dollars ($ 45) per head. Said parties of second part have privilege of two deliveries, or privilege to leave cattle on range they are now on until Oct. 20, 1912, at which time shall be final delivery made.
Said parties of second part agree in case said cattle are taken in two deliveries to pay for same f. o. b. cars Bovina, Texas.
VAN NATTA BROS.
(SEAL) Per JAY M. VAN NATTA.
(SEAL) SMITH & GAINES
Per L. S. GAINES."
Plaintiff who is in the cattle business in Clay county in this State was at Amarillo, Texas, at the time this contract was made and immediately thereafter entered into negotiations with Gaines for the purchase of all the cattle defendants had just contracted to purchase. Plaintiff went to the Van Natta ranch to inspect the cattle, after which he returned to Kansas City and met Gaines by appointment at the Union Station. Gaines, on behalf of defendants, had paid Van Natta Brothers $ 5000, on the purchase price and offered, so he states, to assign the contract to plaintiff if he would pay the consideration of $ 45 per head to Van Natta Brothers on the delivery of the cattle, less $ 5000, and would pay defendants a profit of $ 2.50 per head and reimburse them for the down payment of $ 5000. Plaintiff was to pay $ 6000 at once, $ 1000 of which was an advance payment on defendant's profit. Gaines had left the contract at Glazier and agreed to return home immediately, to indorse on the contract an assignment to plaintiff, and to mail the contract and assignment to the Lee Live Stock Commission Company at the Kansas City Stock Yards, where it would be delivered to plaintiff. After concluding this agreement Gaines telephoned his partner J. W. Smith about it and started that evening on his return to Glazier. Arriving there he wrote the following indorsement on the Van Natta contract:
He mailed the contract thus assigned to the Lee Commission Company but it appears that it was not delivered to plaintiff. The day after the conversation at the Union Station plaintiff and J. W. Smith, acting for defendant entered into the contract in suit at Kansas City and plaintiff paid defendants the sum of $ 6000 as agreed. Plaintiff denies that he entered into an oral agreement with Gaines at the Union Station, or that he agreed to purchase the Van Natta contract. He states that the conversation he had with Gaines related to the purchase of the cattle, not the contract with Van Natta Brothers, and that he left the negotiations open until he could consult with his brother at Liberty. The next morning he saw J. W. Smith at Kansas City and entered into the contract in suit which he claims was the only contract he had with defendants.
We think the conclusion is irresistible, even from the evidence of plaintiff, that the understanding and agreement of the parties were that plaintiff was to purchase of defendants the cattle they had just bought from Van Natta Brothers; that plaintiff knew that the number of the two-year-old steers on the ranch was not known to Van Natta Brothers, nor, of course, to Gaines, and could not be ascertained until the round-up for delivery and, therefore, that the number stated in the contracts was a mere estimate. Plaintiff received a delivery of the 687 head direct from Van Natta Brothers at Bovina, Texas, and paid them $ 45 per head for that number. He insisted on the delivery of the remainder to fill out the total number of 900 head and was informed by Van Natta Brothers that the number delivered comprised all of the two-year-old steers they had been able to collect from the range, but after the Spring round-up they would deliver to plaintiff all other such steers they succeeded in finding. Plaintiff reluctantly agreed to wait until Spring for the delivery but contended that his contract with defendants bound them to deliver 213 head or "about" that number, which he construed to mean within ten or fifteen head either way of that number.
After the Spring round-up Van Natta Brothers claimed that no other two-year-old steers had been found and defendants being unable to procure any further delivery, plaintiff brought this suit for the difference between the contract price and the market value of the 213 head not delivered, his theory being that he is a stranger to the Van Natta contract and that his contract with defendants was complete in itself, unambiguous, and bound defendants to deliver "about" 900 head of cattle which, as stated, he interprets as meaning within ten or fifteen head of that number. We quote from his testimony:
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