Riggins v. Missouri River, Fort Scott & Gulf R.R. Co.

• Decision Date: 30 April 1881
• Citation: 73 Mo. 598
• Parties: RIGGINS v. THE MISSOURI RIVER, FORT SCOTT & GULF RAILROAD COMPANY, Appellant.
• Court: Missouri Supreme Court

73 Mo. 598

RIGGINS

v.THE MISSOURI RIVER, FORT SCOTT & GULF RAILROAD COMPANY, Appellant.

Supreme Court of Missouri.

April Term, 1881.

Appeal from Jackson Circuit Court.--HON. S. H. WOODSON, Judge.

AFFIRMED

Pratt, Brumback & Ferry for appellant.

The uncertainty and indefiniteness of the instrument on its face, leaving out, among other things, any mention of a corresponding obligation on the part of the respondents to ship all, or any, of their lead by appellant's road, show that it was intended, as respondents in their testimony state, as a memorandum of points to be included in a contract when Mr. Hayden should ascertain by what road he could best ship from Kansas City to St. Louis. Chicago v. Sheldon, 9 Wall. 50, 54; Bishop on Contracts, §§ 429, 598; St. Louis Gaslight Co. v. City, 46 Mo. 121, 128. The instrument sued upon is void for want of consideration. There is not a promise for a promise. It contains no mutual covenants, nor correlative obligations. It bound the respondents to nothing whatever. They were not obliged to ship all, or any, of their lead by appellant's road. Parsons on Contracts, (5 Ed.) 448, 449; Bishop on Contracts, §§ 428, 429, 430; Barton v. Great N. R. R. Co., 25 Eng. L. and Eq. 477; Chicago, etc., Ry. Co. v. Dane, 43 N. Y. 240. As to respondents' plea of waiver--there is no evidence to be submitted to a jury upon the question whether appellant, with full knowledge o the breach of the contract by respondents, afterward accepted and carried lead over their road, under the contract. Bishop on Contracts, §§ 655 to 659. The testimony of Col. Coates was clear, positive and uncontradicted, and the court should have allowed it to be submitted to the jury upon the question of rescission by acts of the parties. Bishop on Contracts, §§ 667, 668, 677, 686. It should also have been submitted to the jury upon the question of the right of one party to rescind a contract for breach by the other party. 2 Parsons on Contracts, pp. 675, 678; 6 Eng. L. and Eq. 230; Dubois v. Canal Co., 4 Wend. 285; 8 Reporter 445.

O. H. Dean for respondents.

Both parties having acted upon the memorandum of agreement as if it had been reduced to writing, as originally proposed, neither can object because it was not done. 51 Ill. 126; 27 Vt. 485. The memorandum shows a consideration on its face, plaintiffs agreeing to ship all their lead over defendant's road for one year, in consideration of defendant's agreeing to carry it for that time at a specified rate. Hadden v. Dimick, 31 How. Pr. 196; Smith v. Morrison, 21 La. Ann. 135; Grove v. Ganger, 36 Wis. 369; Barton v. McLean, 5 Hill 256; Attix v. Pelan, 5 Iowa 339; Lewis v. Ins. Co., 61 Mo. 534. The breach of the contract made by plaintiffs was waived. Bersch v. Sander, 37 Mo. 104; McNaughter v. Cassally, 4 McLean 530. The question whether the contract was rescinded or not, could not be submitted to the jury, because not raised by the pleadings. Laraway v. Perkins, 10 N. Y. 371; Coles v. Soulsby, 21 Cal. 47.

HENRY, J.

This was a suit by plaintiffs against defendant for a breach of the following written contract:

“KANSAS CITY, Mo., November 6th, 1872.

Lead from Baxter to St. Louis at 22 1/2 per 100. All lead shipped by Chapman & Riggins to be forwarded by M. R., F. S. & G. R. R. at above rates from January 1st, 1873, to January 1st, 1874, and above rates guaranteed for same time.

H. J. HAYDEN, G. F. A.

RIGGINS & CHAPMAN.”

The breach alleged was, that within the year 1873, plaintiffs offered large quantities of lead to defendant for transportation by the latter under said contract, which defendant refused to receive and carry under the contract, demanding of plaintiffs a greater price, and that the difference between said contract price and that they had to pay for transporation of said lead, was such that they were damaged in the sum of $4,500.

Defendant, by its answer, denied that the written instrument was, or was intended, or understood to be a contract, and alleged that it was only a memorandum of certain particulars which were to be a part of a contract thereafter to be reduced to writing and executed by both parties; and also denied that plaintiffs had done or performed all, or any, of the provisions or agreements in said supposed contract by them to be done or performed; but that, in March, 1873, they shipped three car loads, or 60,000 pounds, of lead from Baxter to St. Louis by the Atlantic & Pacific Railroad and connecting lines at lower rates than those named in said supposed contract.

To this plaintiffs filed a replication, which was a general denial, and specially pleaded that from January 1st to April 15th, 1873, they shipped, and defendant transported for them, large quantities of lead from Baxter Springs to St. Louis under the terms and provisions of said contract; admitted the shipping by them of three car loads over the Atlantic & Pacific Railroad, but charged that after such shipment defendant, with knowledge of that fact, received and shipped over its road, and under said contract, and prior and up to April, 1873, twelve car loads of lead, for which plaintiffs paid the rates specified in said written instrument.

There was evidence tending to prove that the written instrument sued on was not understood by plaintiffs, or defendant's agent who signed it, to be a contract, but only a memorandum by which one was subsequently to be prepared and executed by the parties, and also evidence to the effect that Col. Coates, president of the defendant company, and plaintiff Riggins, had an interview, in which Coates alluded to plaintiffs' shipment of lead by the Atlantic & Pacific Railroad, and complained of it as a breach of their contract with his company, and that Riggins said plaintiffs had no contract with the defendant, and that Coates then remarked: “Then, after this, we will understand it just as you do, and that there is no contract with us;” that after knowledge of plaintiffs' shipment over the Atlantic & Pacific road was communicated to defendant, plaintiffs were informed by defendant, on the 11th day of April, 1873, that, on and after the 15th of that month, increased rates would be charged, and that, after that notice was given, but before the 15th day of April, plaintiffs made shipments of lead over defendant's road under the contract and paid the price named in the instrument of writing sued on. It was also shown by defendant that the rates named in said writing were the same paid by all shippers of lead from Baxter to St. Louis over defendant's road.

The court, for plaintiffs, instructed the jury as follows:

1. The paper read in evidence, signed by Hayden, agent, and by Riggins & Chapman, is a valid contract on its face.

2. It is admitted that plaintiffs and defendant made and signed the memorandum of agreement read in evidence; and although the jury believe that at the time of making the same it was understood that the same should be written out in a more formal shape and thereafter signed by the parties; still if you believe from the evidence that after making the said memorandum, and for two or three months thereafter, plaintiffs delivered to defendant their lead, and defendant received and shipped, or caused the same to be transported from Baxter Springs to St. Louis, under the terms and provisions of said memorandum, then the same was a valid and binding contract between the parties, though never written out in a more formal manner.

3. If the jury find that plaintiffs shipped, and defendant received and carried, or caused to be transported, for two or three months, plaintiffs' lead from Baxter Springs to St. Louis, under and pursuant to said contract, and although plaintiffs did, in the month of March, 1873, ship some three or more car loads of their lead over the Atlantic & Pacific Railroad from Minersville; still if you find that after the defendant, its officers or agents, acting within the line of their duties, had notice of such shipments, it, the defendant, received plaintiffs' lead and shipped the same to St. Louis, and so continued to do up to the 15th day of April, 1873, at the rates and under the terms of said contract; and that, after the 15th day of April, 1873, defendant refused to take or transport plaintiffs' lead at a less rate than $71 per car, or 37 1/2 cents per 100 pounds; that plaintiffs then offered to ship their lead over defendant's road at the contract price, and that defendant refused to take or transport the same at such price, then your finding should be for plaintiffs.

4. The jury are instructed that although plaintiffs did in the month of March, ship three or more car loads of their lead over the Atlantic & Pacific Railroad; still if after that plaintiffs went back and shipped over defendant's road; and if after the officers or agents of defendant had knowledge that plaintiffs had shipped said lead over the said Atlantic & Pacific Railroad, it, the defendant, received and shipped plaintiffs' lead for a time under and in pursuance of the contract; then such facts constitute a waiver by defendant of its right to annul said contract on account of plaintiffs having shipped such lead over the Atlantic & Pacific Railroad.

5. If defendant, with knowledge that plaintiffs had shipped three car loads of lead over the Atlantic & Pacific Railroad,...