Parkins v. Missouri Pacific Railway Company

• Decision Date: 22 March 1906
• Docket Number: 14,361
• Citation: 107 N.W. 260,76 Neb. 242
• Parties: JOSEPH F. PARKINS, APPELLEE, v. MISSOURI PACIFIC RAILWAY COMPANY, APPELLANT
• Court: Nebraska Supreme Court

107 N.W. 260

76 Neb. 242

JOSEPH F. PARKINS, APPELLEE, v. MISSOURI PACIFIC RAILWAY COMPANY, APPELLANT

No. 14,361

Supreme Court of Nebraska

March 22, 1906

APPEAL from the district court for Sarpy county: ALEXANDER C. TROUP JUDGE. Reversed.

REVERSED.

John F Stout, James W. Orr and B. P. Waggener, for appellant.

F. T Ransom, Weaver & Giller H. Z. Wedgwood and W. R. Patrick, contra.

ALBERT, C. DUFFIE and JACKSON, CC., concur.

OPINION

ALBERT, C.

This is the second time a judgment in this case has been presented to this court for review. See Parkins v. Missouri P. R. Co., 4 Neb. (Unof.) 1, 13; 72 Neb. 831, 101 N.W. 1013. For convenience we reiterate so much of the former statement of facts as may be necessary to understand the discussion which follows. On the 5th day of October 1892, the parties entered into a contract in writing as follows: "This agreement made this 5th day of October, A. D. 1892, by and between the Missouri Pacific Railway Company, party of the first part, and Joseph F. Parkins, lessee of the Springfield Gravel Company, party of the second part, Witnesseth: That the said party of the second part agrees to deliver to the party of the first part, in such amounts as may be designated from time to time by said party of the first part, 50,000 yards, cubic measure, of good, clean, marketable gravel, such as shall be in the judgment of the superintendent of the said party of the first part suitable for ballasting the roadbed of said party of the first part, to be delivered on board cars and measured on the cars by the party appointed by the said Missouri Pacific Railway Company to receive the same; the said gravel to be delivered in two years from this date, but times and amounts of delivery of gravel within such period to be determined by the party of the first part as it shall need the same from time to time. In consideration of the premises, the said party of the first part agrees to pay for said gravel 45 cents a cubic yard delivered on the cars as aforesaid, the payments to be made monthly for the gravel furnished during the preceding month. In witness whereof the parties hereto have set their hands this 5th day of October, 1892."

In pursuance of this contract the plaintiff in 1892 delivered to the defendant about 2,000, and in 1893 about 14,000, cubic yards of gravel, and in subsequent years a quantity sufficient to make the total amount delivered 21, 816 cubic yards. None of the gravel delivered in 1892 was used for ballast, and of that delivered in 1893 only about 15 per cent. was used for that purpose. But the whole amount delivered in 1894, and it would seem at least a portion of that delivered in 1895, was used for ballasting the defendant's roadbed. In June, 1894, in response to plaintiff's request to take more of the gravel, the defendant placed its refusal on the ground of a lack of coal, owing to a strike then prevailing among the coal mines in certain localities. In the following September it refused a like request on the ground of the then prevailing business depression, and suggested an extension of the contract for another year. A few days later it renewed its refusal on the same ground, and agreed to extend the contract for another year, and by virtue of such extension the contract was extended to October 5, 1895. In the spring of 1895 the plaintiff again urged the defendant to take more of the gravel, and in response was informed that the defendant had not yet decided how much ballast it could take for use in that year, but that it would not be able to take very much, for the reason "that this company, in line with all others, has got to keep pretty close to shore on account of decreased earnings." The testimony of the plaintiff tends to show that the defendant at no time during the life of the contract, as extended, objected to receiving the remainder of the gravel on any ground other than those just mentioned. On the other hand, evidence adduced by the defendant tends to show that the gravel was unsuitable, both in fact and in the judgment of its superintendent, for ballasting its roadbed; that it made complaint of the gravel on those grounds to the plaintiff in the latter part of 1894 or early in 1895, and early in the summer of the latter year on the same grounds refused to accept the remainder of the gravel, and notified the plaintiff, not only of such refusal, but of the grounds upon which it was based. After this notice is claimed to have been given, the defendant ordered more of the gravel, but it was not used for ballast, but appears to have been taken under the contract. Some appears to have been taken as late as 1898. The defendant having refused to accept the remainder of the 50,000 cubic yards of gravel, the plaintiff in 1899 brought this action, assigning the defendant's refusal to take the remainder of the gravel as a breach of the contract and asking damages.

In his amended petition the plaintiff sets forth the terms of his contract with the defendant and the extension thereof for one year, the quantity of gravel he furnished the defendant thereunder, including that furnished after the time the contract had expired by the terms of the extension, payment for the quantity of gravel furnished and the refusal of the defendant to accept the remainder of the 50,000 yards under the contract. The petition also contains the following averments: "Plaintiff says that the gravel furnished, and received and paid for by defendant under the terms of said contract as aforesaid was all of the same kind and quality and was all accepted and received by defendant under the terms of said contract and was used by the defendant for the purpose of ballasting its roadbed, and was acceptable and suitable in the judgment of its superintendent for that purpose. Plaintiff further states that he was at all times during the period provided for the delivery and acceptance of said gravel, and the extension of the time of the delivery of the same, ready, willing and able to furnish to the defendant the remainder of said gravel, to wit, 30,000 cubic yards of the same kind and quality as provided for in said contract, and as was delivered and accepted by the defendant in the 20,000 yards hereinbefore mentioned as having been delivered and accepted by defendant." The damages are laid at $ 9,000.

The answer admits the execution of the contract; that defendant received a certain quantity of the gravel thereunder and paid for the same, and denies all allegations not admitted. Among other affirmative allegations in the answer are the following: "That it was impossible to determine, without using the same, whether the gravel furnished by plaintiff was suitable for ballasting the roadbed of defendant company, and for that purpose a portion of such gravel was received, used and paid for, to the extent taken; that after using the same it became evident, and it was the judgment and opinion of the superintendent of this defendant company, that the gravel furnished by the plaintiff was not suitable for ballasting defendant's roadbed, and was not in accordance with the contract made between the parties, and said plaintiff was notified that the gravel furnished by him was not, in the judgment of the defendant's superintendent, suitable for ballasting the roadbed of this defendant, and that no more of such gravel would be taken or used for such purpose, and the gravel so furnished by said plaintiff was, as a matter of fact, unfit and unsuitable for the purpose for which the same was contracted to be purchased, and said plaintiff was so informed, and the contract was terminated; that under the terms and conditions of said agreement the superintendent of defendant company was made the sole judge as to the gravel being fit and suitable for the purpose of ballasting defendant's roadbed."

Among other things the reply contains the following: "And, further replying to said answer, alleges that under the terms of such contract and in accordance therewith the plaintiff delivered to the defendant the 21,816 yards of gravel hereinbefore mentioned under said contract, which the defendant received, accepted and paid for as provided by the contract. That during the time for the delivery of the gravel under said contract the plaintiff demanded of defendant that it take and pay for the remainder of the gravel, and the defendant refused so to do, and assigned and asserted at the time as the only reason for such refusal that it was impossible for the defendant to take the remainder of the gravel under said contract on account of the dearth of coal for engine use on defendant's railway, the financial panic existing at the time, and decreased earnings of defendant's railway; * * * that by reason of such conduct and attitude of the defendant the said defendant is estopped now to assert, or claim, or plead as a defense to plaintiff's said action that it refused to receive said gravel for the reason that said gravel was not suitable, in the judgment of the superintendent of defendant, for ballasting defendant's roadbed, or to assign, assert or plead any other reason than the said asserted and assigned reasons for its refusal to receive the remainder of said gravel called for in said contract."

A trial resulted in a verdict and judgment for the plaintiff in the sum of $ 11,220.65, and defendant appeals.

It is first contended that the petition upon which the cause was submitted does not state facts sufficient to constitute a cause of action. This contention is based in part upon a construction which the defendant insists should be placed upon the contract in suit. Such construction is that the contract did not bind the defendant to take 50,000 cubic yards of gravel, even though the gravel offered answered all the requirements of the...