Sherrill-Russell Lumber Company, a Corp. v. Krug Lumber Company, a Corp.
| Decision Date | 06 June 1924 |
| Parties | SHERRILL-RUSSELL LUMBER COMPANY, a Corporation, Respondent, v. KRUG LUMBER COMPANY, a Corporation, Appellant. |
| Court | Missouri Court of Appeals |
Appeal from the Circuit Court of the City of St. Louis.--Hon Franklin Ferriss, Judge.
REVERSED AND REMANDED.
Judgment reversed and cause remanded.
H. A and Harry S. Gleick for appellant.
(1) Where a seller of merchandise breaches an executory contract by failing to deliver the merchandise contracted for, the purchaser has a right to reject the merchandise delivered. Monarch Metal Weather Strip Co. v. Hanick, 172 Mo.App. 680; Henry Gaus & Sons Mfg. Co. v. Magee, etc Co., 42 Mo.App. 307; Little Rock Grain Co. v. Brubacker & Co., 89 Mo.App. 1; Jones v. Norman, 228 S.W. 895; Ungerer & Co. v. Louis Maull Cheese and Fish Co., 155 Mo.App. 95. (2) Where lumber is purchased in carload lots, each car is an indivisible unit and the contract cannot be construed as a contract for individual sticks of lumber. Herrington et al. v. Seidel Lumber Co., 209 Mo.App. 73. (3) Where two parties have entered into an express contract and where the terms of that contract are clear and unambiguous, those terms cannot be varied or contradicted by parol evidence of custom or usage, and such evidence is not admissible to make for the parties an agreement modified or different from the one which they originally entered into. 17 Corpus Juris, p 492, "Customs and Usages," sec. 58; 4 Ruling Case Law, p. 25, "Bills of Lading," sec. 27; 27 Ruling Case Law, p. 189, "Usages and Customs," sec. 31; Hefferman v. Neumond, 198 Mo.App. 667; Kemper Mill & Elevator Co. v. Hines, 239 S.W. 803; State ex rel. v. Public Service Com., 269 Mo. 63; Edmunds v. Cochrane, 226 S.W. 1007; Martin v. Ashland Mill Co., 49 Mo.App. 23; Pavey and Orr v. Burch, 3 Mo. 447 (reprint, p. 314); Miller v. Dunlap, 22 Mo.App. 97; Kimball v. Brawner, 47 Mo. 398; Wolff v. Campbell, 110 Mo. 114; Southwestern Frt., etc., Co. v. Standard, 44 Mo. 83; Turner v. Morris, 142 Mo.App. 60, 125 S.W. 238. (4) A custom must be certain. Ehrlich v. Aetna Life Ins. Co., 103 Mo. 231; Manzke v. Goldenberg, 149 Mo.App. 12, 129 S.W. 32; Pankey v. A. T. & S. F. Ry. Co., 180 Mo.App. 185. 168 S.W. 274. (5) A custom must be reasonable. Martin v. Ashland Mill Co., 49 Mo.App. 23; National Bank of Commerce v. American Ex. Bank, 151 Mo. 320; Southwest Missouri Ry. Co. v. Morning Hour Mining Co., 138 Mo.App. 129, 119 S.W. 982. (6) Evidence on particular transactions may be introduced for the purpose of rebutting an alleged custom and showing its fallibility. 17 Corpus Juris, p. 521, "Customs and Usages," sec. 87; Parrot v. Railroad, 140 N.C. 546; 1 Wigmore on Evidence, p. 692, sec. 376; Rose v. Lewis, 157 Ala. 521; Beach v. Travelers Ins. Co., 73 Conn. 118; Smith v. Landa, 101 S.W. 470. (7) An instruction which ignores material evidence is erroneous. Evans v. General Explosives Co., 239 S.W. 487, 494; Norton v. Kowazek, 193 S.W. 556; Nicholls v. Tallman, 189 S.W. 1184; Craig v. Bank of Granby, 238 S.W. 507.
Curlee & Hay and Cobbs, Logan & Alexander for respondent.
(1) Proof of usage and custom is admissible in evidence to interpret the meaning of the word "carload" and how same is dealt with in the trade. Evans v. Western Brass Mfg. Co., 118 Mo. 548; Baer v. Glaser, 90 Mo.App. 289; Snoqualmi Realty Co. v. Moynihan, 179 Mo. 629; Landau Gro. Co. v. Hart, 223 S.W. 793; Wilcox v. Baer, 85 Mo.App. 587; Blair v. Corly, 37 Mo. 319. (2) Even if the word "carload" appears to be plain and unambiguous, evidence of custom is proper to show a meaning and course of dealing in the trade contrary thereto. Soutier v. Kellerman, 18 Mo. 509; Evans v. Western Brass Mfg. Co., 118 Mo. 548; Landau Gro. Co. v. Hart, 223 S.W. 793. (3) Evidence of usages which prevail as to the subject-matter of a contract is properly received to annex terms thereto or to enlarge same. Hanks v. Lesieur, 204 S.W. 552; Long Bros. v. J. K. Armsby Co., 43 Mo.App. 265; Southwestern etc., Co. v. Stanard, 44 Mo. 71, and cases cited. (4) When a contract is made in view of well-established customs of the trade to which it relates, it is to be construed in the light of those customs. Estes v. Desnoyers Shoe Co., 155 Mo. 577; 17 C. J. 492, sec. 58; Joseph v. Andrews Co., 72 Mo.App. 551. (5) Where there is a well-known usage or custom which obtains in a trade it is presumed that all who are engaged in that trade, where it prevails, contract with a view to such usage unless then expressly exclude the presumption by their contract. Heyworth v. Miller Grain, etc., Co., 174 Mo. 184; Hanks v. Lesieur, 204 S.W. 552; Soutier v. Kellerman, 18 Mo. 509; 27 R. C. L. 162; 17 C. J. 461; Snoqualmi Realty Co. v. Moynihan, 179 Mo. 629; Long Bros. v. J. K. Armsby Co., 43 Mo.App. 253; Barry v. Hamilton, etc., R. Co., 98 Mo. 62; Walsh v. Mississippi Valley Trust Co., 52 Mo. 434; Martin v. Ashland Mill. Co., 49 Mo.App. 23; Cameron v. McNair, 76 Mo.App. 366; Lowenstein & Thomas v. Wabash Ry. Co., 63 Mo.App. 77; Cameron v. Real Estate Co., 76 Mo.App. 370. (6) An established custom of a business is, by implication, incorporated into a contract in reference thereto, unless expressly excluded. Ester v. Desnoyers Shoe Co., 155 Mo. 577; Ehrlich v. Aetna Ins. Co., 103 Mo. 231; Herf & Frerichs Chem. Co. v. Lackawanna Line, 100 Mo.App. 164; Cole v. Skrainka, 37 Mo.App. 427; Southwestern etc., Co. v. Stanard, 44 Mo. 71. (7) Proof of a general, established usage of custom in a trade is by expert evidence based largely upon hypothetical cases. It cannot be established by proof of specific instances nor rebutted by isolated exceptions. 4 Wigmore on Evidence (2 Ed.), par. 1954; Southwestern, etc., Co. v. Standard, 44 Mo. 71; Cleveland, etc., R. Co. v. Jenkins, 174 Ill. 398; 17 C. J. 455, par. 16. (8) There is a distinction between general usage in a trade and a custom or habit of individual parties themselves. The former is established by proof of the fact; the latter by proof of specific dealings. A. D. Birely & Sons v. Dodson, 107 Md. 235; 4 Wigmore on Ev. (2 Ed.), par. 1954.
This is an action by plaintiff for a balance claimed on fifteen cars of lumber sold defendant. Defendant filed a counterclaim, in which it admits there is a balance due plaintiff of $ 2460.92 on ten cars of lumber which it accepted and which met the required grades and specifications, but states that it advanced $ 4916.39 on five cars of lumber which it rejected because said cars of lumber failed to conform to the grades ordered and that after deducting $ 2460.92 which it admits owing plaintiff on said ten cars of lumber, it says that plaintiff owes defendant a balance of $ 2455.47 with interest advanced on the five rejected defective cars of lumber, together with storage charges of $ 650 thereon. On January 10, 1922, the jury returned a verdict for $ 2671.73, including interest, in favor of plaintiff on its cause of action, and found in favor of defendant on defendant's counterclaim for $ 204.78. Thereupon the court rendered a net judgment in favor of plaintiff and against defendant in the sum of $ 2466.95, from which defendant appealed.
The evidence tends to establish that on July 13, 1920, defendant placed an order with plaintiff's assignor, the Sherrill Hardwood Lumber Company, of Merryville, Louisiana, for fifteen cars of lumber. The order provided that "the lumber furnished on this order must be properly manufactured, of good average widths and lengths, and be of standard thickness when dry." The order then specified the following:
"Five cars 1" No. 1 Common Plain
White or Red Oak at
$ 120.00 per M
Three cars 1" No. 2 Common Plain
R or W Oak at
75.00 per M
Two cars 1" Wormy Oak, at
72.00 per M
Two cars 1" No. 1 Common Red Gum
(Plain), at
125.00 per M
Two cars 1" No. 2 Common Red Gum
(plain), at
75.00 per M
One car 5/4 No. 1 Common Sap Gum
to include the No. 2 that de-
velopes No. 1, at
80.00 per M
Thickness as above No. 2, at
50.00 per M
Widths good average
Lengths standard
Grade National Hdwd. Lbr.
Ass'n. Inspection.
Plaintiff's acknowledgement of the order, among other things, provides: "National Hardwood Lumber Company Association rules to govern inspection," and followed in general the order. Of the first thirteen cars of lumber shipped, eight were received and accepted, and five were inspected and rejected. These five cars furnish the subject of this lawsuit. Subsequently the last two cars of the fifteen were shipped, received and accepted. Of the five cars rejected, two were of red gum, and three of oak. They were promptly inspected by the defendant and found defective, and it is admitted by plaintiff that twenty-five per cent of the lumber in each car did not comply with the specifications. Each car was inspected by a representative of the National Hardwood Lumber Association, and upon request of the plaintiff a reinspection was had, with the result, as conceded by plaintiff, that the lumber in these five cars was twenty-five per cent off grade. Defendant in due time notified plaintiff that it was holding these cars subject to its order.
Plaintiff's reply alleged and its evidence tended to establish, in substance, that, in the lumber business, a custom exists on the part of the purchaser to receive and accept, at the contract and invoice price, that part of a car of lumber that complies with the specifications and grade. Relative to the portion of the lumber that does not comply with the specifications and grade, it becomes optional with the purchaser to adjust compensation for the off-grade lumber, or to reject it and hold it subject to the disposition of the vendor.
Plaintiff offered and read in evidence the National Hardwood Lumber...
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