Murphy v. City of St. Louis

• Decision Date: 23 March 1880
• Citation: 8 Mo.App. 483
• Parties: ANDREW MURPHY, Respondent, v. CITY OF ST. LOUIS, Appellant.
• Court: Missouri Court of Appeals

8 Mo.App. 483

ANDREW MURPHY, Respondent,

v.CITY OF ST. LOUIS, Appellant.

St. Louis Court of Appeals, Missouri.

Mar. 23, 1880.

1. Where A. agrees to deliver to B. all the ice on a certain pond at a certain price per ton, a delivery of a portion thereof by A. to a third party is a breach of the contract, which excuses B. from taking the remainder; and the measure of damages for the breach is the difference between the contract price of all the ice and its value on the pond where it was to be delivered.

2. Where the contract is an entire one, the vendee can be liable for a partial delivery and receipt only where a new contract can be fairly implied from an honest intent to pursue the contract on one part and an acceptance of what has been done on the other.

APPEAL from the St. Louis Circuit Court.

Affirmed.

LEVERETT BELL, for the appellant, cited: Fisher v. Goebel, 40 Mo. 475; Waters v. Brown, 44 Mo. 302; Chase v. Railroad Co., 24 Barb. 273.

B. GRATZ BROWN, for the respondent: The contract was an entirety.--2 Pars. on Con. 510, 652. An application for a mere modification in some designated point does not authorize the other contracting party to thenceforth treat the contract as a nullity.-- Picot v. Douglas, 46 Mo. 497. There was no abandonment, and no evidence to sustain the application of the doctrine of estoppel.--Bispham's Eq., sect. 282; Newman v. Hook, 37 Mo. 207; Hempstead v. Easton, 33 Mo. 142.

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

This is an action to recover damages for breach of a contract by which the defendant sold to the plaintiff for several years, including the winter of 1876-7, all the ice which would form in the city reservoirs, being the two storage-reservoirs at Compton Hill, for $1.25 a ton. The plaintiff was to cut the ice when it became eight inches thick, and remove it when measured by the city engineer. The plaintiff cut and paid for the ice during several winters; but in 1876 the defendant made a contract with a third person, and allowed such person to cut and take away the ice, or a considerable portion of it, in one of the reservoirs, thereby preventing the plaintiff from cutting and taking such ice under his contract. There was a conflict of evidence as to the damages, and the jury found for the plaintiff in the sum of $450.

The testimony showed that in the winter of 1876-7 there were from two thousand to two thousand four hundred tons of ice in the reservoirs which were not disturbed by the third person to whom the defendant gave a contract, and that the plaintiff might have taken the remaining portion. In view of this, the defendant claims that it was...