Northrup v. Cook

• Decision Date: 31 October 1866
• Citation: 39 Mo. 208
• Parties: ASHLEY R. NORTHRUP, Respondent, v. ISAAC COOK AND JOHN CHAMBERLAIN, Appellants.
• Court: Missouri Supreme Court

39 Mo. 208

ASHLEY R. NORTHRUP, Respondent,

v.ISAAC COOK AND JOHN CHAMBERLAIN, Appellants.

Supreme Court of Missouri.

October Term, 1866.

Appeal from St. Louis Circuit Court.

Plaintiff sued defendant and his security for breach of the following agreement.

“This agreement made and entered into this 26th day of June, 1863, by and between Isaac Cook of Chicago, of the first part, and Ashley N. Northrup, of St. Louis, party of the second part, witnesseth, that the said Isaac Cook has this day sold and agreed to deliver to said Northrup, in East St. Louis, one thousand tons of ice, for the sum of fourteen dollars per ton, to be delivered within sixty days from date, cash to be paid as delivered in the cars at East St. Louis.”

For the plaintiff the court gave the following instructions:

1. Under the contract read in evidence, it was the duty of the defendant Cook to deliver merchantable ice to the plaintiff in East St. Louis to the amount of one thousand tons; and unless he has delivered, or offered to deliver, the same, then you must find for the plaintiff on a breach of the bond for failure to deliver, unless the jury believe from the evidence that the plaintiff rescinded the contract.

2. If the jury believe from the evidence that Isaac Cook executed the contract read in evidence by the plaintiff, and the defendants executed the bond read in evidence by the plaintiff, that Isaac Cook failed or neglected to deliver the quantity of ice specified in said contract, then the plaintiff is entitled to recover in this action for the part not delivered, the difference between the contract price as stated in said contract and the market price at the place of delivery at the time the same was to be delivered, not exceeding five thousand dollars, unless the jury believe from the evidence that the plaintiff refused to receive any more ice.

The defendants excepted to the giving of these instructions.

The following instruction was given for the defendants:

1. If the jury believe from the evidence that after the defendant had delivered part of the ice, and before the time specified in the contract for the delivery of the ice in question had expired, the plaintiff notified the defendant Cook, or declared to him, that he (the plaintiff) would not receive any more ice from said Cook, then the plaintiff cannot recover against the defendant for damages on account of the non-delivery of the ice which said Cook contracted to deliver.

The court refused to give the following instructions in behalf of the defendants:

2. The measure of damages, if the jury find for the plaintiff, is the market value of ice in East St. Louis, in the cars, at the time when the plaintiff demanded its delivery and tendered the contract price thereof to the defendant.

3. To recover for a breach of contract, in evidence, the plaintiff must show that he demanded delivery of the ice, and made a tender of the contract price to the defendant, before the institution of this suit; and unless the jury is satisfied from the evidence that the plaintiff has affirmatively made this proof, the jury will find for the defendants.

The jury found for the plaintiff, and assessed his damages at five thousand dollars.

Krum & Decker, for appellants.

I. This being an action against Cook and his security, it was incumbent on the plaintiff to show a breach of the bond sued on by Cook before his security could be held liable.

II. By the contract of Cook, he undertook to “deliver the ice in railroad cars at East St. Louis.” Northrup was to receive it there in the cars, and to pay for it on delivery there.

III. The record does not show...