Ryley-Wilson Grocer Co. v. Seymour Canning Co.
| Decision Date | 03 March 1908 |
| Citation | 108 S.W. 628,129 Mo. App. 325 |
| Parties | RYLEY-WILSON GROCER CO. v. SEYMOUR CANNING CO. |
| Court | Missouri Court of Appeals |
A contract to sell tomatoes provided that the seller should "not be held liable for fulfillment of this contract in the event of total failure or destruction of crop."A few days later two other contracts were entered into between the same parties, similar to the first, except that the seller was not to be liable for delivery "of more than 75 per cent. of this order in case of inability to fill order in full, owing to a partial or complete destruction of crops."Held, that the exceptions in the later contracts may be treated as a fact or circumstance to aid in the interpretation of the first one.
9.CUSTOMS AND USAGES — CONSTRUCTION OF CONTRACT — INTENT.
The intention of parties to agreements is usually founded on the general course of affairs, and this is especially true in commercial contracts, which are often written in abbreviated forms and to be interpreted by reference to usage.
10.SALES — CONTRACT — CONSTRUCTION — QUESTION FOR JURY.
A provision, in a contract to sell tomatoes, that the "seller shall not be held liable for fulfillment of this contract in the event of total failure or destruction of crop," is too indefinite for construction by the court, in the absence of undisputed facts, and should be left to the jury.
Appeal from Circuit Court, Webster County; Argus Cox, Judge.
Action by the Ryley-Wilson Grocer Company against the Seymour Canning Company.From a judgment for defendant, plaintiff appeals.Reversed.
G. M. Sebree, for appellant.
On May 29, 1905, plaintiff, an incorporated company, entered into a contract with the defendants, a partnership composed of 30 or 40 members, for the purchase of 1,500 cases of tomatoes.The contract was in writing, and reads as follows:
On June 17, 1905, the parties entered into two other contracts in writing, by the first of which plaintiff purchased and defendant sold 1,000 cases of tomatoes, and by the other contract plaintiff purchased and defendants sold 500 cases of tomatoes.The two contracts of June 17th are similar to the one of May 29th, save the exception to the liability of the defendants for nonperformance contained in the last two contracts, which reads as follows:
"Seller not liable for delivery of goods in case of destruction of cannery, and not liable for delivery of more than 75 per cent. of this order in case of inability to fill order in full, owing to partial or complete destruction of crops by hail, drought or any unavoidable accident or casualty."
This action was instituted in three counts for damages for the nonperformance by defendants of the three agreements.In the first count plaintiff demands damages in the sum of $1,275, in the second of $850, and in the third of $425.It will be observed that 3,000 cases of tomatoes were sold in all, 1,500 under the contract of May 29th, and 1,500 under the two contracts of June 17th.The defense set up in the answer was based on the exceptions to defendants' obligation to perform embodied in the respective contracts.It is alleged in the answer that the crop in the vicinity of the cannery of the defendants was a total failure during the season of 1905, because of extremely wet weather and other unavoidable conditions of the elements; that these conditions resulted in the destruction of the tomato crop in the vicinity, and therefore defendants were unable to perform the contracts, and were, by the terms thereof, released from performance.The reply was a general denial.It was proved the time for deliveries ran from August to December, according to the usual course of business, but some time in September plaintiff wrote defendants asking for shipments of tomatoes, and on September 15th defendants wrote the following letter:
Several letters from the plaintiff were introduced, which show plaintiff stood on the letter of the contracts, and insisted on delivery under each contract to the amount of 75 per cent. of the cases agreed to be furnished.No tomatoes were delivered.It was proved that, as alleged in the answer, the tomato crop in the vicinity of Seymour, in Webster county, where the cannery of defendants is, was a failure during the season of 1905, on account of unfavorable crop conditions, principally the excessive rainfall.After these contracts were entered into, the defendants made contracts for the raising of tomatoes with farmers in the vicinity, mostly members of the defendant firm.These contracts called in the aggregate for 250 acres to be planted in tomatoes, and, according to the yield of an average season, there would have been grown and gathered on this acreage 35,000 cases of tomatoes, or more.So unfavorable was the season that only about 800 cases were gathered on the entire acreage, and the evidence goes to show that on from two-thirds to one-half of it not a tomato was ripened or gathered.A little over 2 per cent. of an average crop was raised.But, as said, defendants' cannery put up about 800 cases, and these were tendered to plaintiff in partial discharge of defendants' obligation under the two contracts of June 17th.These contracts called for 1,500 cases, but defendants were only bound to deliver 75 per cent. of that quantity in case of a total or partial failure of the crop.Hence they were only bound to deliver 1,125 cases.They offered to pay plaintiff's loss on the remaining 325 cases if the 800 cases, which contained the entire tomato crop of the vicinity, were accepted; but plaintiff refused to accept them.It seems to have been part of the tender by defendantsthey should be released from liability under the first contract of May 29th.It will be observed said contract provided defendants should not be bound for its fulfillment in the event of a total failure or destruction of the crop by the elements; whereas the other two contracts bound defendants to deliver 75 per cent. of the stipulated quantity, even if...
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