Nelson v. Cal Hirsch & Sons' Iron & Rail Co.

• Decision Date: 17 November 1903
• Citation: 102 Mo. App. 498,77 S.W. 590
• Court: Missouri Court of Appeals
• Parties: NELSON v. CAL HIRSCH & SONS' IRON & RAIL CO.

77 S.W. 590

102 Mo. App. 498

NELSON v. CAL HIRSCH & SONS' IRON & RAIL CO.

Court of Appeals at St. Louis, Missouri.

November 17, 1903.

SALES — CONTRACT — DEFINITENESS — QUANTITY—TIME OF DELIVERY—REPUDIATION BY SELLER — BREACH — RESALE — REASONABLE TIME—ACTIONS—CAPACITY TO SUE—DAMAGES —INTEREST—CONSTRUCTION OF CONTRACT— SUBMISSION TO JURY—HARMLESS ERROR.

1. Under Rev. St. 1899, § 541, providing that a trustee of an express trust is entitled to sue in his own name, where plaintiff and certain associates obtained franchises for the construction of street railways in a city, and before incorporating tore up certain existing railways, and plaintiff, while so doing, contracted on behalf of himself and his associates to sell to defendant certain of the material so torn up, plaintiff was entitled to sue for breach of such contract in his own name.

2. Where at the time secondhand rails were sold the rails had not been taken up, and the quantity of each grade was estimated, it being agreed that all the rails to be taken up by plaintiff in the reconstruction of the street railroad in a certain city were sold to defendant at certain prices per ton for each grade, the contract was not void for indefiniteness as to the thing sold.

3. Where correspondence preceding an offer and acceptance for the sale of secondhand rails stated that the seller would be ready to deliver in car-load lots in from 40 to 60 days, and the buyer stated his willingness to receive in 30 to 60 or 90 days, the offer and acceptance were not ineffectual to constitute a contract by reason of the fact that no time for delivery was specified therein.

4. Where correspondence relating to the sale of goods constituted a contract of sale, and the jury so found, the fact that the court submitted the question of the existence of a contract to the jury was not reversible error.

5. Where plaintiff contracted to deliver secondhand rails suitable for relaying at a certain price, and defendant thereafter contended that the contract was for "first-class" relayers, the fact that plaintiff immediately informed defendant that he had no "first-class relayers," and that he therefore hesitated to ship without an inspection by defendant, did not constitute a repudiation of the contract by plaintiff.

6. Where a buyer repudiated a contract of sale, and the seller resold the goods without notice to the buyer, the measure of the seller's damage was the difference between the price agreed on and the market value of the goods at the time and place agreed on for their delivery, though they might have brought less than their market value at the resale.

7. Defendant broke his contract to purchase secondhand rails from plaintiff, the letter of cancellation being dated April 24, 1900, and probably received by defendant two days later. Plaintiff testified that he still hoped to induce defendant to take the rails, and by reason of a declining market did not immediately endeavor to resell the rails, and did not sell the same until June 18th, when the market had become somewhat better. Held, that the resale was within a reasonable time.

8. Where delay in delivering goods sold beyond the contract period was in part due to a letter written by the buyer to the seller demanding a quality of rails not stipulated for in the contract, and by the buyer's refusal or disinclination to inspect the rails before shipment as requested by the seller, the latter was entitled to recover for the loss sustained by defendant's breach of the contract, notwithstanding the delay.

9. Where, in an action for breach of a contract for the sale of secondhand rails at a certain price per ton, the number of tons deliverable under the contract was uncertain at the time of the breach, and thereafter defendant was not notified of the number of tons of each grade deliverable under the contract, and no demand was made for payment of damages sustained by the seller on resale for the buyer's account, the court properly restricted the computation of interest on the amount due to the commencement of the suit.

10. Where defendant broke a written contract to purchase secondhand rails from plaintiff, plaintiff was entitled to recover interest on the damages sustained, under the express provisions of Rev. St. 1899, § 3705.

Appeal from St. Louis Circuit Court; D. D. Fisher, Judge.

Action by S. L. Nelson against the Cal Hirsch & Sons' Iron & Rail Company. From a judgment in favor of plaintiff, defendant appeals. Modified.

A. L. Hirsch, for appellant. Hornsby & Harris, for respondent.

BLAND, P. J.

On January 22, 1900, plaintiff wrote defendant from Wichita, Kan., as follows: "Dear Sir: We shall have for sale within thirty or forty days several carloads of 35 lb. T rails and 45 lb. girder rails. Both will be suitable for relaying. What can you offer f. o. b. cars here?" From the date of this letter up to and including February 9th a regular and frequent correspondence in respect to the rails mentioned in plaintiff's letter of January 22d was kept up. On February 9th, in answer to a direct inquiry for prices, plaintiff wired defendant as follows:

"Scrap twelve fifty, girder fifteen, relayers twenty, gross ton, Wichita."

On the same date plaintiff wrote defendant as follows:

"Dear Sirs: Have wired you as follows: `Scrap $12.50, girder $15, relayers $20, gross ton, Wichita.' If accepted, we will, if you desire, commence loading as soon as our new material is on the ground, and we can commence the work of reconstruction."

On the same date defendant telegraphed plaintiff as follows:

"S. L. Nelson, Gen. Mgr. & Pur. Agt., Springfield, Ohio: Telegram received. We accept scrap, girder rails and thirty-five pound relaying tee rails your price."

This telegram was followed by a letter from defendant to plaintiff accepting the plaintiff's offer f. o. b. Wichita, with the request that plaintiff let defendant know when he would ship same, and indicating defendant's desire to give shipping directions before any of the material should be loaded, and also requesting that plaintiff give defendant an idea as to how many hundred tons of girder and 35-pound relaying rails there would be. Again, on February 12th, defendant wrote plaintiff, inquiring the number of tons of 35-pound relayers plaintiff would have to ship, and giving directions to ship by the Rock Island, and to consign mixed scrap to Cal Hirsch & Sons Iron & Rail Company, V. & C. Belt, East St. Louis, Ills., and saying: "It would favor us if you would ship the relaying T rails with splices at once— two to four carloads or more." A car load of scrap was shipped by plaintiff to defendant, which was received by it, and paid for. On February 16th, and also on the 20th, defendant wrote plaintiff to hurry up shipment of relayers, and again on the 22d wrote plaintiff: "We will thank you indeed to let us know when you are ready to ship the 35 lb. first class relaying T rails with fastenings, and how many carloads or tons there will be. Also let us know when you are going to ship the other material." On February 23d plaintiff wrote defendant as follows:

"Gentlemen: We are just in receipt of your favor of the 22nd. The beginning of our work is delayed on account of a few minor materials which have failed to arrive. We are advised, however, that on to-morrow or Monday shipment of all these things will be made. This ought to mean that with favorable weather our work should begin vigorously next week. If so it is barely possible that we can give you one car of relayers on March 15th or 20th. We doubt whether there will be more than one car available for some time. These relayers will not be as you state, `first-class relaying rails,' and will not include the fastenings. We have found upon investigation that nearly one-half of the splices are broken and our new joints will require the use of one of the old bars so we do not believe that you can count upon receiving any at all. We doubt very much whether these relaying rails will be suitable for any other than logging tramways. We shall have in perhaps sixty days about one hundred tons of 35 lb. T iron rails. These of course you understand will be worth more as scrap than as relayers. What will you offer us for them? We will respect your instructions with regard to routing and will advise you a day or two in advance of any further shipments. When Mr. Cohn returns will be glad to have him go with us and look at the relayers. He perhaps can report to you more satisfactorily than we can."

Defendant answered this letter as follows:

"Dear Sir: We have your letter of the 23rd, contents noted, for which accept our thanks, but Mr. Nelson as we purchased fifty tons or more of good, first-class relaying rails from you and we sold them, you therefore see our position, and as for the iron tee rails, you will find that they are not worth as much for scrap as for relayers, as old iron tee rails have declined very much; nevertheless, we would like to get the fifty (50) tons of good, first-class relaying rails according to purchase and would ask you to let us know when you will be able to ship them to us. We also wish to call your attention to the fact that you wrote in your original letters when you offered us this material that you did not know whether you would sell iron or steel relaying tee rails and we understood that we bought all of the 35 lb. relaying rails which you had, all in first-class relaying condition as the sale and purchased of you according to your letters and our letters as well as telegrams, and we thank you to let us hear from you. Doubtless you have some of the fastenings which will be all right for these rails. Of course, we do not expect more of these than you can scrape up for us, but will appreciate to get as many as possible of these fastenings that are first-class. Thanking you in advance for your kind attention and feeling assured that you desire to do the proper thing and awaiting your prompt answer fully, we are,...