Seavy & Flarsheim Brokerage Co. v. Monarch Peanut Co.
| Decision Date | 02 May 1922 |
| Docket Number | No. 17140.,17140. |
| Citation | 241 S.W. 643 |
| Court | Missouri Court of Appeals |
| Parties | SEAVY & FLARSHEIM BROKERAGE CO. v. MONARCH PEANUT CO. |
Appeal from St. Louis Circuit Court; Robert W. Hall, Judge.
"Not to be officially published."
Action by the Seavy & Flarsheim Brokerage Company against Monarch Peanut Company. Judgment for the plaintiff in the circuit court on appeal from a justice of the peace, and defendant appeals. Affirmed.
Walter N. Davis, of St. Louis, for appellant.
J. Sydney Salkey and Arthur J. Freund, both of St. Louis, for respondent.
This is an action to recover damages for breach of contract. The cause was begun in a justice court, taken by appeal to the circuit court, where there was a judgment for the plaintiff, from which the defendant appeals.
The petition, which is the only pleading in the case, alleges, in substance, that the plaintiff, on the 23d day of October, 1916, entered into a contract with the defendant whereby the defendant sold and, agreed to deliver to the plaintiff 250 bags of peanuts, to be shipped to the plaintiff on or before November 15, 1916, and that the defendant breached its contract by failing to deliver said peanuts, and that plaintiff was thereby damaged in the sum of $432.43.
The cause was tried by the circuit court, a jury being waived, and said court found the issue in favor of the plaintiff and accordingly rendered judgment for $432.43.
At the trial of the case it was stipulated between the parties that, if plaintiff was entitled to recover, the damage to which it was entitled was the amount sued for.
The sole question presented on this appeal is whether or not plaintiff ordered and the defendant confirmed one car of peanuts or two cars.
The contract is evidenced entirely by telegrams and letters that passed between the parties.
On October 18, 1916, plaintiff mailed a letter to the defendant inquiring if defendant could furnish the plaintiff with a car of peanuts for immediate or prompt shipment and requesting it to quote, by wire, lowest price, including brokerage of plaintiff of 2½ per cent., and in reply thereto the defendant wrote to the plaintiff a letter, dated October 20, 1916, saying that: "On a basis of 6¼ f. o. b. we could book an order for a car or maybe two of them for November shipment (first half)."
Whereupon on October 23, 1916, plaintiff wired defendant a night letter as follows:
"Letter twentieth received we will take two hundred fifty bags number one Spanish shelled peanuts first-class quality six one quarter fob Houston Shipment not later than November fifteenth Earlier if possible Terms cash less one per cent in ten days Our brokerage two one half per cent Wire confirmation."
The defendant accepted said order on October 24, 1916, by sending plaintiff a Western Union telegram (at 10:25 a. m.), which reads as follows:
"Confirm car number one shelled Spanish six quarter fob Houston first half November shipment."
Upon receipt of the acceptance of its said order, plaintiff wrote to the defendant a letter, dated October 24, 1916, as follows:
Thereafter on the same day, October 24th (at 10:12 p. m.), plaintiff sent the defendant by night letter the following order, to wit;
"Enter Bayle Food Products Company, two hundred fifty bags number one Spanish shelled peanuts Strictly first class quality six one quarter fob Houston Terms cash less one per cent in ten days or thirty days net Cur brokerage two one half per cent Shipment not later than November fifteenth Earlier if possible Wire confirmation."
On October 26th defendant telegraphed plaintiff:
The telegram, through error of the Western Union, reached plaintiff as follows:
"Have booked Bayle for carload Confirm Nothing more to offer."
Thereupon the plaintiff sent a telegram to the defendant on the same day, as follows:
"Telegram received confirmed car to Bayle shipment first half November."
On the same day, to wit, October 26th, plaintiff also wrote a letter to the defendant, which reads thus:
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...Great Falls Mfg. Co., 84 N. H. 32, 146 A. 172; McConnell v. Lamontagne, 82 N. H. 423, 134 A. 718; Seavy & Flarsheim Brokerage Co. v. Monarch Peanut Co. (St. Louis Ct. of App.) 241 S. W. 643. Applying the principle to offer and acceptance, Mr. Williston, at section 35 of his work on Contract......
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