Scullin Steel Company v. Mississippi Valley Iron Company

• Decision Date: 23 May 1925
• Docket Number: 23950
• Citation: 273 S.W. 95,308 Mo. 453
• Parties: SCULLIN STEEL COMPANY v. MISSISSIPPI VALLEY IRON COMPANY, Appellant
• Court: Missouri Supreme Court

273 S.W. 95

308 Mo. 453

SCULLIN STEEL COMPANY v. MISSISSIPPI VALLEY IRON COMPANY, Appellant

No. 23950

Supreme Court of Missouri

May 23, 1925

Appeal from St. Louis City Circuit Court; Hon. J. Hugo Grimm, Judge.

Affirmed.

Jos T. Davis and Nagel & Kirby for appellant.

(1) As a matter of law plaintiff is not entitled to recover defendant's demurrer to the evidence should have been given and this cause should be reversed outright. Cole v Armour, 154 Mo. 333; Roaring Fork Potato Growers v. Clemons Prod. Co., 187 S.W. 619; Carman v. Harrah, 182 Mo.App. 365; Mulliken v. Hastine, 160 Mo.App. 14; Peters & Reed P. Co. v. Folckemer, 131 Mo.App. 105; Frank Hart Realty Co. v. Ryan, 218 S.W. 415; St. L. Tr. Co. v. Am. R. E. & Inv. Co., 82 Mo.App. 260; Mohoney v. Reed, 40 Mo.App. 99; Lanitz v. King, 93 Mo. 519; Pressed Brick Co. v. Barr, 76 Mo.App. 380; Estel v. Ry. Co., 56 Mo. 282; Grams v. Novinger, 231 S.W. 267; St. L. Steam Heating & V. Co. v. Bissell, 41 Mo.App. 432; Bridge Co. v. Corrigan, 251 Mo. 667; 35 Cyc. 251; 23 R. C. L. 1444, sec. 268; 23 R. C. L. 1374; Ohio Falls Car Co. v. Menzies, 90 Ind. 83; Harris v. U. S. F. & G. Co., 213 S.W. 153; Stumpf v. Mueller, 17 Mo.App. 283; Chambers v. Board of Education, 60 Mo. 370; Hart v. Handlin, 43 Mo. 171; World Publ. Co. v. Hull, 81 Mo.App. 277; McGhee v. Bell, 170 Mo. 148; Tower v. Pauley, 51 Mo.App. 75; Johnson v. Whitman Agricultural Co., 20 Mo.App. 100; Roberts v. Benjamin, 124 U.S. 64, 31 L.Ed. 334; Morgan v. McKee, 77 Pa. 228. (2) The cause should be reversed because of the erroneous theory that time was not of essence of the contract. Bridge Co. v. Corrigan, 251 Mo. 667, 685; Harris v. U. S. F. & G. Co., 213 S.W. 153; St. L. Steam Heating & V. Co. v. Bissell, 41 Mo.App. 432. (3) The court committed reversible error in excluding material and relevant testimony offered by defendant relative to the circumstances and conditions surrounding the parties at the time to aid in the construction of the contracts. Consolidated Coal Co. v. Brick Co., 66 Mo.App. 296; C. M. & St. P. Ry. Co. v. Hoyt, 194 U.S. 1, 37 L.Ed. 625; 23 R. C. L. 147; St. Joseph Hay & Feed Co. v. Brewster, 195 S.W. 72; Clough v. Stilwell Meat Co., 112 Mo.App. 191; Laclede Constr. Co. v. Moss Tie Co., 185 Mo. 62; North St. L. B. & L. Assn. v. Obert, 160 Mo. 515; Power Co. v. City of Independence, 188 Mo.App. 160; Redlands Orange Growers Assn. v. Gorman, 161 Mo. 203. (4) The court erred in excluding competent and material evidence as to weather conditions following delays caused by strikes. (5) The court erred in excluding the United States Government weather report as to weather conditions in the New England states tending to show general railroad congestion. (6) The court erred in refusing to allow defendant to introduce competent, material and relevant testimony as to delays under the excuse clause due to coke conditions. Coal Co. v. Brick Co., 66 Mo.App. 301; Power Co. v. Independence, 175 S.W. 88; C. M. & St. P. Ry. Co. v. Hoyt, 149 U.S. 1, 37 L.Ed. 625. Waiver by and estoppel of plaintiff from objecting to same. Railway v. Plate, 92 Mo. 614; Bruce v. Bombeck, 79 Mo.App. 231; Mason v. Mining Co., 82 Mo.App. 367; Baker v. McKinney, 87 Mo.App. 361. (7) The court erred in permitting plaintiff to introduce its witness Champion out of order in chief on rebuttal testimony. Glenn v. Stewart, 167 Mo. 584; State v. Marti, 230 Mo. 1, 77; Seafield v. Bohne, 169 Mo. 537; Burns v. Railway, 24 Mo.App. 10; Christal v. Craig, 80 Mo. 367. (8) The court erred in permitting the introduction of evidence to the effect that plaintiff went into the open market to purchase iron when that was not an issue. (9) The court ered in admitting in evidence plaintiff's letter which contained immaterial prejudicial statements and refused to strike out that part of said letter. Walter v. Hoeffner, 51 Mo.App. 46; Grimm v. Inv. Co., 55 Mo.App. 457. (10) The court erred in giving its own instruction numbered 2 on measure of damages. Benjamin on Sales (4 Ed.) sec. 1314; Detroit Beef Co. v. Holstein Comm. Co., 223 S.W. 792; Grocery Co. v. Thompson, 216 S.W. 780; Rogers v. Union Iron Fdry. Co., 216 S.W. 780; Biddle v. Castner, 207 S.W. 129. (11) The court erred in denying to defendant the right to file its amended answer and counterclaim. Secs. 1232, 1233, R. S. 1919; Barber Asphalt Co. v. Ridge, 169 Mo. 367.

Jourdan, Rassieur & Pierce and Rassieur & Goodwin for respondent.

(1) There is no variance between the pleading and the proof, nor is there any evidence in plaintiff's case from which a waiver or modification of the contracts may be inferred as a matter of law, and the defendant's demurrers to the evidence were properly overruled. Peak v. International Harvester Co., 194 Mo.App. 128; Redlands Orange Growers' Assn. v. Gorman, 161 Mo. 203; Wall v Ice & Cold Storage Co., 112 Mo.App. 659; Murmann v. Wissler, 116 Mo.App. 397; Bernhardt v. Federal Terra Cotta Co., 101 S.E. 588. (2) The acceptance of the one hundred and forty tons of pig iron in October was not a waiver. Redlands Orange Growers' Assn. v. Gorman, 161 Mo. 203; Wall v. Ice & Cold Storage Co., 112 Mo.App. 659; Peak v. International Harvester Co., 194 Mo.App. 132. (3) The letter of August 10 was not a waiver. Bernhardt v. Federal Terra Cotta Co., 101 S. E. (Ga.) 588. (4) The acceptance of one installment or a part thereof, not delivered in accordance with contract, is not a waiver as to the balance. 24 R. C. L. sec. 566, p. 286; Phillips v. Taylor, 4 N. E. (N. Y.) 727; Enterprise Manufacturing Co. v. Oppenheim, 114 Md. 368, 38 L. R. A. (N. S.) 548; 23 R. C. L. p. 1366. (5) The action being for total non-performance the question whether time of delivery was of the essence of the contracts is immaterial. 2 Williston on Contracts, sec. 846, p. 1621. (6) In executory contracts of sale, time is of the essence of the contract. Cleveland Rolling Mill Co. v. Rhodes, 121 U.S. 255, 30 L.Ed. 922; Norrington v. Wright, 115 U.S. 188; Redlands Orange Growers' Association v. Gorman, 161 Mo. 203; 2 Williston on Contracts, sec. 847, p. 1622; 23 R. C. L. p. 1331. (7) Parol evidence is incompetent to vary or enlarge the terms of a written contract, and the court properly excluded oral evidence that in addition to the conditions named in the contracts, delivery was to be further conditioned on the completion of defendant's plant. Bross v. Stancliff, 240 S.W. 1091; Massmann v. Holscher, 49 Mo. 87; Bank v. Bank, 244 Mo. 544, 576; Beheret v. Myers, 240 Mo. 58. (8) Parol evidence is inadmissible to show that a contract was delivered upon a condition subsequent. 23 R. C. L. p. 1392; Lilienthal v. Suffolk Brewing Co., 28 N. E. (Mass.) 151. (9) These were contracts to deliver, not to manufacture, and defendant does not make out a defense unless it shows that delivery was prevented by reason of the conditions stated in the contract. Therefore, if pig iron was obtainable on the market for delivery in St. Louis, defendant was bound to purchase and deliver same. Haff v. Pilling, 134 F. 294; Cannistraci v. James Chieves & Co., 165 N.Y.S. 933. (10) Even if the contracts could be construed as contracts to manufacture, then under the rule of ejusdem generis the general clause "other causes beyond our control" following the words "strike and accidents" does not enlarge the excuses specifically enumerated, to-wit, strikes and accidents. American Bridge Co. v. Glenmore Distilleries Co., 107 S.W. 283; Hickman v. Cabot, 183 F. 747; Rosenstein v. Farish Co., 178 N.Y.S. 865. (11) There is no substantial evidence in the case that the breach of contract was caused solely and directly by strikes or accidents, independent of all other causes. Lima Locomotive & Machine Co. v. National Steel Castings Co., 155 F. 77; Cleveland Rolling Mill Co. v. Rhodes, 121 U.S. 255, 30 L.Ed. 920; Consolidated Coal Co. v. Jones & Adams Co., 83 N. E. (Ill.) 852; Consolidated Coal Co. v. Block & Hartmann Smelting Co., 36 Ill.App. 38; Pittsburgh Coal Co. v. Northy, 123 N.W. 47; Arkell & Douglas v. Borenstein & Sons, 176 N.Y.S. 581; 35 Cyc. 247; 23 R. C. L. 1430. (12) Evidence that the Indiana Coke & Gas Company may have broken its contract to supply blast furnace coke to defendant and that said coke was not obtainable on the market was properly excluded; first, because under the rule of ejusdem generis it is not included in the strike and accident clause; second, because in making a sales contract a manufacturer assumes the risk of being able to obtain proper fuel and raw materials. Cleveland Rolling Mill Co. v. Rhodes, 121 U.S. 255, 30 L.Ed. 920; Haff v. Pilling, 134 F. 294; Cases cited under points 10 and 11. (13) Evidence of weather conditions obtaining in St. Louis and elsewhere was properly excluded: first, because under the rule of ejusdem generis weather conditions are not included in the strike and accident clause; and, second, because bad weather is no excuse for non-performance of a contract unless it is expressly so agreed. Kitzinger v. Sanborn, 70 Ill. 146; Cases cited under points 9, 10 and 11. (14) Hearing testimony out of order, as an accommodation to a witness, is a matter within the discretion of the trial court. (15) Where evidence, inadvertently received, is withdrawn from the jury by instruction, and the jury are specifically instructed to disregard it, said instructions cure any error that may have been committed in receiving the testimony, and its reception is not prejudicial. (16) The letter of August 10 was competent and relevant evidence: first, as a demand; second, to rebut the defense of waiver; third, as tending to show pig iron was obtainable on the St. Louis market; fourth, as showing that plaintiff had a meritorious complaint; fifth, as relevant to the measure of damages. Harrison Wire Co. v. Hall & Willis Hardware Co., 97 Mo. 289; Haff v....