Roberts et al. v. Harmount Tie & Lumber Co.

• Decision Date: 02 July 1924
• Docket Number: No. 3494.,3494.
• Citation: 264 S.W. 448
• Parties: ROBERTS et al. v. HARMOUNT TIE & LUMBER CO.
• Court: Missouri Court of Appeals

264 S.W. 448

ROBERTS et al. v. HARMOUNT TIE & LUMBER CO.

No. 3494.

Springfield Court of Appeals. Missouri.

July 2, 1924.

Appeal from Circuit Court, Butler County; Almon Ing, Judge.

Action by Lee Roberts and others against the Harmount Tie & Lumber Company. Judgment for plaintiffs, and defendant appeals. Affirmed.

Munger & Munger, of Piedmont, and Sheppard & Sheppard, of Poplar Bluff, for appellant.

Sam M. Phillips and Yount & Kearby, all of Poplar Bluff, for respondents.

BRADLEY, J.

Plaintiffs proceeded against Harmount Tie & Lumber Company and 0. C. Lucy to recover damages alleged to have been caused by refusal to accept and pay for railroad ties. On trial before the court and a jury, plaintiffs recovered a judgment against Timmons Harmount, who was operating under the name of Harmount Tie & Lumber Company, but the finding was in favor of Lucy. Harmount failed to get a new trial and appealed.

Plaintiffs allege that they entered into an agreement with defendant to the following effect:

"That defendant would buy, accept, and receive from plaintiffs all the railroad cross-ties that plaintiffs would produce at the following prices f. o. b. cars loading point, to wit:"

Then follows statement of the different kinds of ties, and prices. Plaintiffs allege further that under this agreement they furnished ties from time to time, and that defendant accepted and paid for them; that from October 1, 1920, to December 20, 1920, plaintiffs cut and delivered at Sawyer, the loading point, 2,182 ties, and that defendant refused to accept and pay for said ties; that because of the refusal to accept these ties, plaintiffs were compelled to, and did, sell to the best advantage they could, but were damaged, etc.

Defendant Harmount answered, admitting that his agent Lucy wrote plaintiffs, in which he stated that defendant would purchase all the railroad cross-ties that plaintiffs would produce, consisting of the kinds and quantities and at the prices mentioned in plaintiffs' petition, but that said contract was not mutual or binding on either of said parties, was unilateral and void. Defendant further admitted that plaintiffs from time to time furnished ties, and that defendant accepted and paid for them according to the terms of the contract, but denied that he was bound to accept any ties other than the ones mentioned in plaintiffs' petition and defendant's answer as having been accepted and paid for. Defendant stated in his answer that he had no knowledge or information as to whether plaintiffs furnished and delivered ties between October 1 and December 20, 1920, but says that if plaintiff did manufacture and deliver ties between those dates as alleged, that said ties were not of the kind, quality, etc., as required by the pretended contract.

On September 28, 1920, defendant wrote plaintiffs as follows:

"Confirming our telephone conversation of this date we can use all the ties you produce at the following prices, f. o. b. cars loading point."

Then follows a statement of the kind of ties, prices, etc. The letter concludes:

"Advise this office when you are ready to load and we will furnish an inspector."

Plaintiffs, after they cut and delivered 3 carloads which were accepted, continued, without notice from defendant that he would not be further bound, and cut and placed on the tieyard at Sawyer about 2,100 ties between October 1st and December 20th. After these ties were placed, plaintiffs notified defendant to send an inspector. An inspector came "and looked around and said the ties were mixed up a little, and he wouldn't load them."

Plaintiff Roberts made two or three trips to see defendant, and each time defendant through his agents stated that the inspectors were called off, but promised to load out the ties "as soon as they [the inspectors] came back." Finally defendant refused outright to load out plaintiffs' ties.

Defendant offered no evidence, but stood on his demurrer. Defendant's contention, as his answer states, is that the contract was unilateral and lacked mutuality of obligation. It is true that the contract did not obligate plaintiffs to manufacture any certain number of ties, or to do anything. But plaintiffs contend that when they manufactured and delivered to the place agreed upon the 2,100 ties, which measured up to the requirements of the contract, and these ties were manufactured and delivered prior to notice from defendant that he would not be further bound by his promise, that in such case defendant would be bound to the extent of the performance by plaintiffs, prior to notice. When defendant promised to take all the...