Oehler v. Conrad Schopp Fruit Co.

• Decision Date: 09 January 1912
• Parties: MARIA OEHLER, Respondent, v. CONRAD SCHOPP FRUIT CO., Appellant
• Court: Missouri Court of Appeals

142 S.W. 811

162 Mo.App. 446

MARIA OEHLER, Respondent, v. CONRAD SCHOPP FRUIT CO., Appellant

Court of Appeals of Missouri, St. Louis

January 9, 1912

Appeal from St. Louis City Circuit Court.--Hon. George H. Shields Judge.

AFFIRMED.

Judgment affirmed.

Kinealy & Kinealy for appellant.

(1) The document filed as an exhibit to the petition and read in evidence is no contract. As plaintiff sues for breach of a contract she must prove a contract between herself and defendant, and as she failed to do this the instructions asked by defendant to the effect that she could not recover should have been given. Const. Co. v. Iron Works, 169 Mo. 137; Cole v. Armour, 154 Mo. 333; Const Co. v. Wrecking Co., 137 Mo.App. 392; Taylor v Sebastian, 138 S.W. 549. (2) Plaintiff's first instruction is erroneous because it is the duty of the court and not the jury to construe a writing alleged to constitute a contract between the parties. State v. Brown, 171 Mo. 477; Ford v. Dyer, 148 Mo. 528; Comfort v. Ballingal, 134 Mo. 281; Chapman v. Railroad, 114 Mo. 542; Rodgers v. Bro. of Am., 131 Mo.App. 353. Also because it refers the jury to the pleadings to ascertain the issues on trial. Masterson v. Transit Co., 204 Mo. 507; Jordan v. Transit Co., 202 Mo. 418; Glasgow v. Railroad, 191 Mo. 347; Railroad v. McGrew, 104 Mo. 282. (3) Plaintiff's second instruction, on the measure of damages, is erroneous: (a) Because it proceeds on a wrong theory. For breach of contract to accept personal property the measure of damages is the difference between the contract price and the market value. B. & N. Co. v. Car Co., 210 Mo. 715; Bank v. Ragsdale, 171 Mo. 168; Warren v. Mfg. Co., 161 Mo. 113; Lumber Co. v. Warner, 93 Mo. 374; Range Co. v. Mercantile Co., 120 Mo.App. 438. (b) Because it takes no heed of what plaintiff realized out of the alleged rejected apples by drying and evaporating them. Instructions must not ignore potent evidence. Bank v. Powers, 102 Mo.App. 415; Herf v. Lackawanna Line, 85 Mo.App. 667. (c) Because there was no evidence as to the number of hundredweight of the specified sized apples plaintiff claims the defendant rejected. Instructions must have evidence to support them. Crowe v. Railroad, 212 Mo. 589; Stetzler v. Railroad, 210 Mo. 704; State v. Edwards, 203 Mo. 528; Paddock v. Somes, 102 Mo. 226. (d) The petition alleges plaintiff had $ 810 worth of good apples left in her orchard. She therefore suffered no damages and the instruction for substantial damages had nothing to base it on. (4) The court's modification of defendant's instruction was erroneous because under the contract pleaded by plaintiff defendant had the right to refuse to accept the apples in the orchard since the contract required plaintiff to load them on the cars. Plaintiff had to recover on the contract alleged in her petition or not at all. Const. Co. v. Iron Works, 169 Mo. 137; Cole v. Armour, 154 Mo. 333; Const. Co. v. Wrecking Co., 137 Mo.App. 392; Taylor v. Sebastian, 138 S.W. 549.

S. C. Rogers for respondent.

(1) Plaintiff proved by her contract with defendant as fully as the petition, contract and the law requires. (2) Plaintiff's first instruction was correct. It was taken from and approved in Harding v. Nettleton, 86 Mo. 660; McQuillin's Instructions to Juries, section 1695, page 969; Campbell v. Woods, 122 Mo.App. 726; Kain v. Railroad, 29 Mo.App. 62; State v. Richmond, 186 Mo. 78. (3) Plaintiff's second instruction properly declares the measure of damages. Vinegar & Spice Co. v. Wehrs, 59 Mo.App. 493; Campbell v. Woods, 122 Mo.App. 719; Range Co. v. Mercantile Co., 120 Mo.App. 438; Walker v. Nixon, 65 Mo.App. 326; Lumber Co. v. Lumber Co., 51 Mo.App. 555; Dobbins v. Edmonds, 18 Mo.App. 307; Hammond v. Darlington, 109 Mo.App. 342. Defendant should have asked instructions on the measure of damages. Minter v. Bradstreet Co., 174 Mo. 490; McQuillin's Inst. to Juries, secs. 129-132, pp. 99-101. (4) The court properly modified defendant's instruction. Plaintiff did all she was required to do. Ober v. Carson, 62 Mo. 209; Groffe v. Belche, 62 Mo. 400; Kaes v. Lime Co., 71 Mo.App. 101; Campbell v. Woods, 122 Mo.App. 719.

NORTONI, J. Reynolds, P. J., and Caulfield, J., concur.

OPINION

NORTONI, J.--

This is a suit for damages accrued to plaintiff through the breach of a contract of sale of personal property. Plaintiff recovered and defendant prosecutes the appeal.

Plaintiff owned two orchards in Wayne county, Illinois, and sold such of the apples therein as were sound and as much as two and one-half inches in diameter and over to defendant for the agreed price of forty cents per hundredweight or twenty cents a bushel. Defendant accepted a portion of the apples but the remainder it rejected, and the suit proceeds for the purchase price as though the apples rejected by defendant were sound and in every respect conformed to the requirements specified in the contract. The contract of sale is in writing and recites that plaintiff sold all of the sound apples two and one-half inches in size and up, now in her two orchards in Wayne county, Illinois, to defendant. The price fixed thereby is forty cents per hundredweight. On the day the contract was entered into, October 4, 1906, defendant paid plaintiff $ 200 in cash thereon and by the provisions of the contract stipulated to pay the balance as soon as the apples were delivered on board the cars at Keen station, Illinois. It is provided in the contract that defendant was to furnish a man to oversee the picking of the apples and loading of the cars and to pack such of the apples in the orchard as it saw fit to pack there before loading on the cars. Plaintiff agreed to pick the apples and to deliver them on the cars at Keen station. It appears plaintiff had about 3500 apple trees in her two orchards and that they were laden with from two to five bushels of apples to the tree. Defendant sent its man to plaintiff's orchard to take charge and oversee the picking and packing of the apples and he remained there for several days, but rejected almost all of the apples as being insufficient in point of quality and size. Having accepted a few hundred bushels, which were loaded on the cars by plaintiff at Keen station, defendant's overseer rejected the balance of the apples tendered by plaintiff, and proceeded to buy elsewhere in the neighborhood, it is said, at fifteen cents per bushel. It appears plaintiff had about 10,000 bushels of apples on the trees in her two orchards at the time, and according to her evidence and the witnesses for her, several thousand bushels of these apples were as much as, or more than, two and one-half inches in diameter and perfectly sound. These were all tendered to defendant, and its supervisor, Ferrera, took possession of the whole, but some ten days or two weeks thereafter rejected them, saying the apples were affected with the dry rot, etc. The evidence for defendant tends to prove that it accepted all of plaintiff's apples tendered to it, which were two and one-half inches in size and sound, and rejected those only which were under size and unsound. From this, it appears that the only issue of fact involved at the trial was as to whether plaintiff tendered to defendant "sound apples two and one-half inches in size and up, " which it refused to receive. On this question, the jury found the issue for plaintiff as though she had tendered a large quantity of such apples, which defendant rejected, amounting in all to $ 810.

It is urged the court should have directed a verdict for defendant because the written contract of sale annexed to the petition and introduced in evidence appears to be unilateral, as it is signed by defendant alone. It is sufficient to say of this that the proof shows the writing was executed in duplicate copies, each of which was in the precise language of the other. One copy of the contract was signed by defendant and delivered to plaintiff, the other copy was signed at the same time by plaintiff and delivered to defendant. In instituting the suit, plaintiff, of course, filed that copy of the contract of sale with her petition which was in her possession and that is the one signed by defendant. But, be this as it may, as the two papers were identical in all respects as to the terms of the contract and executed at the same time as above set forth, they evidenced but one contract, all of which was in writing, and this, too, signed and executed by both parties. So considered together, the contract of sale imposes mutuality of obligation on a valid consideration and is, therefore, not unilateral. [1 Page on Contracts, sec. 17.]

By the first few lines of plaintiff's first instruction, the court informed the jury that if it found from the evidence that plaintiff sold defendant all of the sound apples in her two orchards, two and one-half inches in size and up, at forty cents per hundredweight, etc., then if it found other facts therein hypothesized, in the affirmative, etc., the verdict might be for plaintiff. So much of the instruction as seems to submit to the jury as a question of fact the matter pertaining to the contract of sale is criticized, for it is said as the contract was in writing, the court alone should construe and declare it. There can be no doubt that it is the duty of the court to construe and declare the legal effect of written contracts, and they should not, when clear and unambiguous, as here, be referred to the jury; but be this as it may, the matter of submitting the contract to the jury is wholly immaterial here and does not even suggest a suspicion of error. The contract of sale is conceded throughout the case. Defendant neither denies nor disputes it. Indeed, both parties agree precisely and in all respects as to its terms and conditions, and the mere fact...