Peak v. International Harvester Co.

• Decision Date: 25 May 1916
• Docket Number: No. 1715.,1715.
• Parties: PEAK v. INTERNATIONAL HARVESTER CO. OF AMERICA.
• Court: Missouri Court of Appeals

186 S.W. 574

194 Mo. App. 128

PEAK v. INTERNATIONAL HARVESTER CO. OF AMERICA.

No. 1715.

Springfield Court of Appeals. Missouri.

May 25, 1916.

Appeal from Circuit Court, Carter County; W. N. Evans, Judge.

Action by Z. J. Peak against the International Harvester Company of America. From a judgment for plaintiff, defendant appeals. Case affirmed.

Garry H. Yount, of Van Buren, for appellant. J. W. Chilton, of Winona, for respondent.

STURGIS, J.

The plaintiff recovered damages for breach of a contract, in that defendant failed and refused to furnish and deliver to him at Elsinore, Mo., one of its New Ideal binders, whereby his crop of wheat was left standing until overripe, and he was compelled to harvest the same with "cradles." In this way his wheat was damaged and much of it lost in harvesting and he was put to much expense in hiring hands to cradle it. The contract for the purchase of the binder is dated May 16, 1914, and was made through defendant's selling agent at Elsinore, and specified that the binder was "to be shipped in time for the coming harvest," and was also "to be consigned to the care of Condray & Leach, agent, Elsinore." No question is made but that the binder was not delivered in time for the harvest, nor indeed at any time, nor as to the fact or amount of plaintiff's damages in having to harvest his wheat in an expensive and wasteful way and after the proper time by reason of not receiving the binder. He contracted for the binder for this purpose, relied on receiving it, as he was assured he would from day to day, till his wheat was overripe, and then, being unable to get another binder for the purpose, was compelled to hire men to cut it as best they could with the old-fashioned cradle.

The defendant makes and stresses but two points as grounds for a reversal of this case by this court, and it will be sufficient to discuss and dispose of such points. The first point raised is that the circuit court of Carter county, where the case was brought and tried, was without jurisdiction. The defendant is a foreign corporation duly authorized, by having complied with the laws of this state, to do business here, and having its office for the transaction of its usual and ordinary business at St. Louis. Service of the summons issued by the Carter county circuit court was duly had on defendant at St. Louis. The plaintiff upholds the jurisdiction of the court solely on the ground that our statute (section 1754, R. S. 1909) permits suits against corporations to be commenced in the county where the cause of action accrued, and maintains that plaintiff's cause of action accrued in Carter county. The defendant's contention is that, although the plaintiff made the contract with and through the selling agent of defendant at and in Carter county, yet, since the contract was not final till accepted by defendant, and such acceptance took place in St. Louis, the accrual of the cause of action was in St. Louis.

We agree that defendant has not waived this point by answering and participating in the trial, since it had a right, as it did, to join in its answer a plea to the jurisdiction and to the merits. Barnett, Hayes & Barnett v. Building Co., 137 Mo. App. 636, 648, 119 S. W. 471; Lumber Co. v. Lumber Co., 152 Mo. App. 386, 392, 133 S. W. 384. Here, as in the case first cited, the court tried the two pleas, the one to the jurisdiction, and the other to the merits, together, without objection, and hence there was not a waiver of the plea to the jurisdiction.

We also agree that the law is that, where a contract is made between two parties not residing in the same jurisdiction, the situs of the making of the contract is the place where the final assent is given by one party to the terms proposed by the other. 2 Elliott on Contracts, § 1115; Barnett, Hayes & Barnett v. Building Co., 137 Mo. App. 636, 647, 119 S. W. 471. If the decision of this case depended on a solution of the question as to the venue of the making of this contract, defendant's contention would have much force. The cause of action sued on, however, is based on and has to do with the breach of the contract rather than its making. The cause of action accrued, therefore, at the place of its breach. It is the performance of the contract which was breached, and, obviously, the place of the performance, rather than the place of the making, determines the place of the breach. The present contract provides for a delivery of the binder to plaintiff at Elsinore, in Carter county, and it is defendant's failure to deliver same at that place that constitutes the accrual of plaintiff's cause of action. This question received thorough consideration in the case of Barnett, Hayes & Barnett v. Building Co., supra, which involved the making and...