Planters' Nut & Chocolate Co. v. Douglas Candy Co.

• Citation: 240 S.W. 473
• Decision Date: 01 May 1922
• Docket Number: No. 14131.,14131.
• Court: Court of Appeal of Missouri (US)
• Parties: PLANTERS' NUT & CHOCOLATE CO. v. DOUGLAS CANDY CO.

240 S.W. 473

PLANTERS' NUT & CHOCOLATE CO. v. DOUGLAS CANDY CO.

No. 14131.

Kansas City Court of Appeals. Missouri.

May 1, 1922.

Appeal from Circuit Court, Buchanan County; Thos. B. Allen, Judge.

"Not to be officially published."

Action by the Planters' Nut & Chocolate Company against the Douglas Candy Company. Judgment for plaintiff, and defendant appeals. Affirmed on condition.

Landis & Duncan, of St. Joseph, for appellant.

John E. Hefty and W. N. Linn, both of St. Joseph, for respondent.

ARNOLD, J.

This is a suit on a contract of sale entered into August 14, 1919, whereby the Douglas Candy Company, a corporation of St. Joseph, Mo., agreed to purchase 30 cases Pennant brand of salted peanuts from plaintiff, a corporation of Wilkes-Barre, Pa., placing its order therefor with the salesman of the latter. Said order is as follows:

Planters' Nut & Chocolate Company.

                              Wilkes-Barre, Pa., 8-14-1919
                  Sold to Douglas Candy Co
                  Town, St. Joe. State, Mo
                  Street, ______
                  How ship ____. When ____.     Rush
                  Terms.
                  30 cases 10-lb. Pennant ..... $3.00.
                  Be sure send 12 samples f. o. b. factory.
                     Thank you.
                

Prices Not Guaranteed.

This order subject to cancellation by the seller on account of inability to secure raw materials, supplies or labor, or on account of fires, strikes or other similar contingencies beyond seller's control.

Future orders shall be accepted subject to the above conditions and at prices ruling on date of shipment.

All sales shall be subject to the addition of any taxes that may be levied upon the goods purchased.

                  J. A. Gagliardi. [Signature of Salesman.]
                  Send this copy to the office.
                

The above order, set out in full in the petition, is the entire contract upon which the sale is based. On September 12th, thereafter, pursuant to said order, plaintiff shipped the goods so ordered and claims the prevailing price on date of shipment, viz., $3.50 per case. The goods were received by defendant and a check for the shipment @ $3 per case, as named in the contract, less the discount for cash, was sent plaintiff in payment therefor. Said cheek was refused by plaintiff, and some correspondence ensued between the parties relative to the difference of 50 cents per case.

The petition sets out the facts practically as stated above, and prays judgment for $105, with interest from September 12, 1910. The answer charges that the order and contract were for immediate shipment, and so specified, and further alleges the shipment was withheld by plaintiff for 30 days, and until the price had advanced 50 cents per case, and that the amount, $88.20, tendered plaintiff was in full for the contract price, less the cash discount. The reply was a general denial.

Upon the pleadings thus made the cause went to trial to the court, a jury having been waived. Judgment was rendered in favor of plaintiff in the sum of $113.03, which included interest from September IV, 1919. After its motion for new trial was overruled, defendant brought the case here by appeal.

In its motion for a new trial defendant charges error in that: (1) The court erred in admitting incompetent and irrelevant evidence over the objections of defendant; (2) in overruling defendant's demurrer to the evidence; and (3) in finding for plaintiff.

In support of point 1, it is urged that under the terms of the contract the order was for immediate delivery. That the word "Rush," immediately following the terms "How ship" and "When," was in fact an order for immediate shipment, and that the court erred in admitting testimony of plaintiff In modification of said contract.

Plaintiff meets this contention by directing attention to the fact that the order, or contract, states "prices not guaranteed." The goods were not shipped immediately, and, as far as the record shows, defendant was not notified of the cause of the delay. The record fails to show that plaintiff denied that the salesman, Gagliardi, was authorized to enter into a binding contract in its behalf. The contract is written, and Is plain, and the rule is well settled that the court should not admit oral testimony to vary the terms of a written contract.

The only evidence introduced at the trial was a deposition of one Driscoll, manager of plaintiff company, taken at Wilkes-Barre, Pa., in which questions were propounded relative to the mailing on August 29, 1919, to defendant of a certain postal...