New Prague Flouring Mill Co. v. Spears
| Decision Date | 26 September 1922 |
| Docket Number | No. 34739.,34739. |
| Citation | 189 N.W. 815,194 Iowa 417 |
| Parties | NEW PRAGUE FLOURING MILL CO. v. SPEARS. |
| Court | Iowa Supreme Court |
OPINION TEXT STARTS HERE
Appeal from District Court, Marion County; L. N. Hays, Judge.
Action at law for the recovery of damages upon a written contract for the sale of flour. Directed verdict and judgment for defendant, and plaintiff appeals. Affirmed.James A. Howe, of Des Moines, and H. L. Hoidale, of Minneapolis, Minn., for appellant.
Vander Ploeg & Johnson, of Knoxville, for appellee.
The plaintiff is a wholesale dealer in flour, and defendant the proprietor of a restaurant and bakery. On July 28, 1920, at a solicitation of a traveling salesman, defendant executed a written order for the purchase from plaintiff of 100 barrels of flour. This simple and familiar business transaction was evidenced by a writing of such unusual and extraordinary character--so insusceptible of any satisfactory abbreviation--that we here copy it verbatim:
Exhibit A. Dated July 28, 1920. New Prague Flouring Mill Co., of New Prague, Minn., hereby agrees to sell to G. A. Spears of Pleasantville, Iowa, who agrees to buy from seller, at said New Prague, at the price or prices, in the quantity, or quantities stated below, and on the terms and conditions and subject to the agreements appearing below and on the back hereof, the following described goods:
+-----------------------------------------------------------------------------+
¦Number Bbls. ¦Style of ¦Seller's Brand ¦Price Flour per bbl. ¦
¦Flour ¦Package ¦ ¦Feed, per ton ¦
+-------------+-----------+--------------------------+------------------------¦
¦100 ¦98 ¦#White Pearl Flour Course ¦$14.15 ¦
¦ ¦ ¦Granulation ¦ ¦
+-----------------------------------------------------------------------------+
If any specifications are written in space immediately following, they shall apply to each shipment unless request for change reaches seller's New Prague, Minn., office 5 days before shipment and such change is consented to in writing by seller from its said office.
+-------------------+
¦¦¦Old Wheat Flour ¦¦
+-------------------+
Ship to Pleasantville, Iowa.
Railroad delivery desired by buyer at destination C. B. & Q.
To be shipped at follows: November 1st, 1920, on directions to be furnished you by buyer.
Terms: Net. Arrival draft with bill of lading attached.
Draft through Citizens Bank.
Freight allowed by seller to D. M.
Par. 1. If buyer indicated a desire to have any “shipping date” extended but fails to specify substitute date, or proposes extension or substitute date which is not satisfactory to seller, seller may, if it desires, extend “shipping date” for such time as it may desire, but not more than 30 days, giving buyer notice by mail or telegram thereof. In event of such extension, or any other extension or postponement of “shipping date,” buyer shall furnish directions for shipment, within such extended period, as in clause (2) of par. 4 (even though not specifically written on face hereof that buyer shall furnish directions), buyer's failure so to do authorizing seller to exercise, as to shipment extended, any of the four rights set out in said clause (2). Granting of extension shall always be optional with seller. Buyer shall pay seller for any and all extensions or postponements of “shipping date” (whether at buyer's request, or otherwise), “carrying charges” equal to 10¢ per bbl. on flour and 25¢ per ton on feed for each 30 days, or fraction thereof, extended or postponed, due on demand. Any such charges accrued on date of any shipment may be included in draft therefor.
Par. 2. On breach of contract by buyer, seller shall recover liquidated damages as follows: Clause 1st: As to any of above goods shipped which buyer wrongfully fails or refuses either to accept or pay for, seller may resell same, at public or private sale, without notice, any time within 90 days from date of such failure or refusal, and recover from buyer thereon difference between purchase price thereof herein contracted and price obtained on resale, if latter be less than former; also all incidental loss and expense, including salesmen's time and expense, demurrage, storage, cartage, reconsigning, additional freight charges, etc., and any carrying charges unpaid on such goods. Resale anywhere in the usual course of seller's business, and resale at any terminal market or at or near destination shall be proper and price received conclusive unless bad faith is clearly proven.
Clause 2nd: As to any of above flour remaining unshipped by reason of buyer's breach, seller shall recover damages as follows: (a) A sum equal to 4¢ multiplied by the number of bu. of wheat required to make such unshipped flour, figuring 4 3/4 bu. to the bbl. of flour: plus, (b) a sum equal to 2¢ multiplied by the said number of bu., which sum shall be calculated for each 30 days, or fraction thereof, intervening between date hereof and date of breach: plus, (c) amount of decline, if any, per bu. from date hereof to date of breach, in highest closing price, at Mpls., of number 1 Northern Spring wheat, multiplied by said number of bu. In case of a rise in such price of such wheat between said dates, instead of a decline, seller shall recover the sums at (a) and (b) above less a sum determined by multiplying amount of such rise, per bu., by said number of bu., such prices on date hereof and date of breach being taken to ascertain amount of decline or rise per bu. Any carrying charges paid on such flour only shall also be deducted from seller's said recovery. If there is neither rise nor decline in such price, seller shall recover the sums at (a) and (b) above, less such carrying charges paid, if any. Such wheat prices as shown by “Daily Market Record” of Mpls. or records of Mpls. Chamber of Commerce shall be conclusive unless proven materially erroneous. As to feed, or other mill products, so remaining unshipped hereunder, if any, seller shall recover difference (less freight allowed thereon, if any) between purchase price thereof herein contracted and value thereof to seller, in carload lots, at said New Prague, based on its minimum selling price on date of breach, if latter be less than former.
Par. 3. Subject to qualification herein, as to any goods which seller fails to ship within contract time, buyer is authorized to purchase within 30 days after such failure, in the open market, at manufacturer's prices, in quantity equal to that which seller so fails to ship, goods of the same quality as herein contracted for and recover from seller, excess of price so paid, if any, over purchase price herein, which shall be his sole remedy. [Signed] New Prague Flouring Mill Company, Seller, by [Signed] Lenz & Crawford, Salesman. [Signed] G. A. Spears, Buyer.
(On back of contract:)
Par. 4. Clause (1). Unless specifically written on face hereof that buyer shall furnish shipping directions, seller shall ship the within goods, as may be directed in writing on face hereof, but, if no shipping directions are written on face hereof or if directions so written are indefinite or incomplete, seller shall either request buyer to supply or complete directions or shall make shipment without so doing, in which latter event seller shall use its best judgment as to buyer's desires, observing any time limit for shipment written on face hereof. If seller requests buyer to supply lacking, or to complete indefinite or incomplete directions and buyer fails to do so within such time as seller, in its said request therefor, may limit, seller shall make shipment as last above provided at any time that it may elect, not later than 30 days after expiration of time so limited in said request. Clause (2). But if specifically written on face hereof that buyer shall furnish shipping directions, buyer shall be obliged to notify seller of date, or dates, for shipment, which shall not be later than “shipping date;” also quantity and (if within style of package is not desired) package, or assortment, wanted, and he shall take out (without previous request) all of within goods as aforesaid, and his failure so to do shall give seller right, as to any of within goods remaining unshipped by reason thereof, to either (a) treat contract as if rescinded; or, (b) extend “shipping date” 30 days, and thereafter (as long as buyer's said failure or refusal continues) continue the life hereof by as many such successive extensions as seller may desire; or, (c) ship such goods within 30 days after “shipping date,” exercising its judgment as to packages desired by buyer; or, (d) terminate contract (as to such unshipped goods only), at 5 o'clock P. M. Central Time, on “shipping date,” and recover, on such unshipped goods, damages, as set out in clause 2nd of par. 2, construing date of such termination to be date of breach. If seller desires to exercise any of the rights (a), (c) or (d), last above, it shall, at least 5 days before “shipping date,” give buyer written notice of such intention, specifying approximate date of shipment in case of election to ship. Mailing of such notice to buyer to within or known address shall be compliance with this par., time to be calculated from date of mailing, which shall count as first day. If notice is not so given seller shall be deemed to have elected under sub. (b) of this clause (2) and this contract shall automatically extend itself, as to any such goods so remaining unshipped, for 30 days at a time (subject to aforesaid carrying charges against buyer), until buyer furnishesdirections for shipment for such goods, or one of the rights (a), (c) or (d), last above, is exercised. If seller, under said sub. (d) of this clause (2), thru mistake, terminates on a date, other than one authorized by said sub. (d), but proximate to such authorized date, seller shall, nevertheless, recover, on...
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International Milling Co. v. Reierson
...purchased flour to fill its contract.” A case involving a similar contract but very different issues is cited. New Prague Flouring Mill Co. v. Spears, 194 Iowa 417, 189 N.W. 815. Here the plaintiff sought to hold defendant to the damages expressed in a similar contract provision, but plaint......
- New Prague Flouring Mill Co. v. Spears