Pierson-Lathrop Grain Co. v. The Potter Lumber, Grain & Hardware Co.

• Decision Date: 11 March 1922
• Citation: 239 S.W. 559,210 Mo.App. 387
• Parties: PIERSON-LATHROP GRAIN COMPANY, a Corporation, Respondent, v. THE POTTER LUMBER, GRAIN AND HARDWARE COMPANY, a Corporation, Appellant
• Court: Missouri Court of Appeals

239 S.W. 559

210 Mo.App. 387

PIERSON-LATHROP GRAIN COMPANY, a Corporation, Respondent, v. THE POTTER LUMBER, GRAIN AND HARDWARE COMPANY, a Corporation, Appellant

Court of Appeals of Missouri, Springfield

March 11, 1922

Appeal from Jasper County Circuit Court.--Hon. Grant Emerson, Judge.

REVERSED.

Judgment reversed.

Martin & Martin for appellant.

(1) The letter of October 24, 1917, Exhibit "F" is the only writing signed by the party to be charged. This letter is not an acceptance of the terms of the written confirmation contracts signed by the plaintiff, Exhibits "B" and "D," as it in no way refers to such confirmation contracts so that the same may be identified from the writing resort to parol evidence. Marshall-Hall Gr. Co. v. Merc Co., 203 Mo.App. 220; Hain v. Burton, 118 Mo.App. 584; Schoeder v. Toafe, 11 Mo.App. 268; Fowler Elev. Co. v. Cotterell, 38 Neb. 512, 57 N.W 19. (2) It is clear that the letter written by Potter Exhibit "F," does not refer to the written confirmation contracts, Exhibits "B" and "D" and if it refers to the oral conversation had over the phone, it does not satisfy the Statute of Frauds, in that the terms of the contract are not expressed in writing, with reasonable certainty, so that its essential terms can be ascertained from the writing itself without resort to parol. Marshall-Hall Grain Co. v. Mercantile Co., 203 Mo.App. 220, l. c. 225; Meramec Portland C. & M. Co. v. Kreis, 261 Mo. 160, l. c. 169; Arky v. Commission Co., 185 Mo.App. 241, l. c. 248; Carter v. Timber Co., 184 Mo.App. 523, l. c. 528; Durham v. Hartman, 153 Mo. 625, l. c. 629; Ringer v. Holzclaw, 112 Mo. 519, l. c. 522. (3) If it can be said that the defendant undertook to be bound by any sort of contract, or that there was ever a meeting of the minds of the parties, it was in an agreement that was not to be margined and one conditioned on defendant's ability to get cars, and not the contract pleaded, or the one attempted to be proved, and according to the proof if there was any meeting of the minds of the parties it was in the oral conversation had after the receipt of Potter's letter Exhibit "F," by the plaintiff, and under the Statute of Frauds no part of the contract can rest in parol, or be modified by parol. Reigart v. Coal Co., 217 Mo. 142, l. c. 166; Warren v. Mayer Mfg. Co., 161 Mo. 112, l. c. 122; Allen West Com. Co. v. Richter, 228 S.W. 827, l. c. 830; Moran v. Thurman Davis Gr. Co., 226 S.W. 84; Fuller v. Presnell, 233 S.W. 502, l. c. 505; Last Chance Min. Co. v. Tuckahoe Min. Co., 202 S.W. 287; Ringer v. Holzclaw, 112 Mo. 519, l. c. 522-23; Boyd v. Paul, 125 Mo. 9, l. c. 14; Ruck v. Harrington, 52 Mo.App. 481, l. c. 488. (4) It is well settled that if, after a contract is made, it is modified by a subsequent agreement, the contract as modified must be declared on before a recovery can be had. Gifford v. Williams, 187 Mo.App. 29, l. c. 38. There is no writing introduced in evidence which confirms or accedes to the conditions contained in the letter of Potter, Exhibit "F," and hence the plaintiff's evidence fails to satisfy the Statute of Frauds. Eastern State Ref. Co. v. Teasdale & Co., 211 S.W. 693, l. c. 695. (5) Secondary evidence of these instruments was not admissible for the reason that the testimony did not show that they were properly prepared for mailing, that is, stamped and addressed. Bless v. Jenkins, 129 Mo. 647, l. c. 660; Welsh v. Chicago Guaranty Fund Life Soc., 81 Mo.App. 30, l. c. 36; Best v. Insurance Co., 68 Mo.App. 598, l. c. 602; State v. Grinter, 134 Mo. 512; Kvale v. Keane, 39 N.D. 560, 168 N.W. 74, 9 A. L. R. 972.

Kenneth W. Tapp and Wesley Halliburton for respondent.

(1) The correspondence is sufficient to satisfy the Statute of Frauds. Pierson-Lathrop Grain Co. v. Barker, 223 S.W. 941; Carter v. Timber Co., 184 Mo.App. 529; Peycke Bros. v. Ahrens, 98 Mo.App. 456; Truskett v. Commission Co., 180 S.W. 1048; Leesley Bros. v. Fruit Co., 162 Mo.App. 195; Riddle v. Castner, 209 S.W. 127; Marshall-Hall Gr. Co. v. Boyce Merc. Co., 211 S.W. 725; Heideman v. Wolfstein, 12 Mo.App. 366; Cunningham v. Williams, 43 Mo.App. 629; Northup v. Colter, 150 Mo.App. 639; 20 Cyc. 278; Kelly v. Thuey, 143 Mo. 422; Smith v. Shell, 82 Mo. 215; Reigart v. Coal Co., 217 Mo. 142; Brimm v. Alexander, 185 Mo.App. 599; Black v. Crowther, 74 Mo.App. 480; Grocer Co. v. Capen, 23 Mo.App. 301; Moore v. Mountcastle, 61 Mo. 424; Meek v. Hurst, 191 Mo. 68. (2) The oral evidence showing the surrounding circumstances and the application of the memorandum to the contracts was clearly admissible. Carter v. Timber Co., 184 Mo.App. 529; Leesley Bros. v. Fruit Co., 162 Mo.App. 195; Darnell v. Lafferty, 113 Mo.App. 282; Russell v. Berkstresser, 77 Mo. 417. (3) There was no modification of the contract merely because plaintiff waived a requirement which it was duty of defendant to comply with, and which was to defendant's advantage. 13 Corpus Juris. 670 (sec. 764); 13 Corpus Juris. 673. (4) The letter refers to the confirmations and not to the oral conversations. Peirson-Lathrop v. Barker, 223 S.W. 941. (5) The letter contained merely an excuse for a possible future failure to ship, and was not a conditional acceptance or a modification. Pierson-Lathrop v. Barker, 223 S.W. 941; Tradewater v. Lee, 68 S.W. 400; Hesser v. Fuel Co., 90 N.W. 1094; 2 Wharton Law of Evidence (3rd Ed.), sec. 872. (6) The carbon copies are regarded as originals, and may be introduced in evidence, even though the typewritten originals are not accounted for. Hay v. American Clay Co., 179 Mo.App. 567; Wright v. Railroad, 118 Mo.App. 392; Bond v. Sandford, 134 Mo.App. 477. (7) The evidence as to mailing was sufficient. Peirson-Lathrop Gr. Co. v. Barker, 223 S.W. 941; Ward v. Transfer Co., 119 Mo.App. 83; Hastings v. Life Insurance Co., 138 N.Y. 473, 34 N.E. 289; Lawrence Bank v. Raney Co., 26 A. 119; Matter of Wiltse, 25 N.Y.S. 733; 16 Cyc. 1068. (8) The verdict is proper, and the amount cannot be questioned. Smart v. K. C., 194 Mo. 513; Farrell v. Transit Co., 103 Mo.App. 454; R. S. 1919, secs. 1550, 1276, 1513. (9) The proper measure of damages was used, and the instructions are proper. National Warehouse v. Toomey, 144 Mo.App. 516; Peirson-Lathrop v. Barker, 223 S.W. 941; Peirson-Lathrop v. Britton, 189 S.W. 584.

COX, P. J. Farrington, J., concurs; Bradley, J., concurs in separate opinion.

OPINION

COX, P. J.

--Action for damages for breach of contract to sell 10,000 bushels of corn. Trial by jury; verdict and judgment for plaintiff and defendant has appealed.

The plaintiff claimed to have purchased 10,000 bushels of corn from defendant and that defendant had refused to deliver it. The value of the corn was in excess of $ 30 and the contract is therefore within the Statute of Frauds and this statute was pleaded as a defense. The deal being in conversation over the telephone and it is claimed by plaintiff was consummated by the exchange of letters.

On October 12, 1917, the plaintiff, whose place of business was at Kansas City, Missouri, wrote defendant at Iantha, Missouri, a letter confirming the oral contract previously made by phone for the purchase of 5,000 bushels of corn. The material parts of this letter are as follows: "We confirm purchase of you per phone 11 a. m. of car 5,000 bushels corn No. 3 or better @ 1.14 1/2 basis f. o. b. Iantha, Missouri. . . . if December shipment 2 cents less, 5 cents per bushel margin to be deposited with us and kept good to the market . . . if shipment not made in time specified our option to accept, reject, extend time or buy in for shippers account."

On October 15, 1917 a similar letter except as to price and time of shipment, which was for December, confirming purchase of 5,000 bushels of corn was written to defendant by plaintiff.

Up to October 23rd, no reply had been received by plaintiff to either of these letters and on that day plaintiff wrote defendant the following letter: "We have drawn draft on you today for $ 500 margin on 10,000 bushels of corn which we have purchased from you on deferred shipment. It is usual to require a margin on trades made for deferred shipment and is one of our rules. We trust you will take up this draft promptly on arrival and pay it."

On October 24, 1917, Mr. Potter wrote plaintiff for defendant as follows: "We have your letter addressed to the Farmers Grain & Implement Company of Iantha, Missouri, and note you have made draft for $ 500. We do not expect to margin this contract or any other contract that we make outside of buying options. You are buying corn from us and if we get the cars, you will get the corn." Plaintiff did not reply to this letter and there was no other correspondence until November 20, 1917, when plaintiff wrote defendant as follows: "Under date of October 12th, we purchased five thousand bushels of No. 3 corn for November shipment. Kindly bill this grain to us at Kansas City, Missouri."

On November 23rd, plaintiff again wrote to defendant asking when the corn bought October 12th would be shipped. On December 5th, plaintiff wrote to defendant asking when it might expect shipment of the 10,000 bushels. On December 17th, plaintiff again wrote defendant and in that letter set out the terms of the agreement of both purchases aggregating 10,000 bushels but made no reference to a deposit for margin and quoted therein a part of defendant's letter of October 24th in which defendant had stated: "We do not expect to margin this contract or any other contract we make outside of buying options. You are buying corn from us and if we get the cars you will get the corn" and suggested that defendant could, if he wished, wait until December 31st, and then plaintiff could buy other grain to replace that bought from defendant and they could settle on payment of...