Shickle v. Chouteau

• Citation: 10 Mo.App. 241
• Parties: FREDERICK SHICKLE ET AL., Appellants, v. CHOUTEAU, HARRISON & VALLÉ IRON COMPANY, Respondent.
• Decision Date: 19 April 1881
• Court: Court of Appeal of Missouri (US)

10 Mo.App. 241

FREDERICK SHICKLE ET AL., Appellants,

v.CHOUTEAU, HARRISON & VALLÉ IRON COMPANY, Respondent.

St. Louis Court of Appeals, Missouri.

Apr. 19, 1881.

1. The words “more or less” in a contract will not cover an indefinite quantity, and will allow only a slight departure from the quantity expressed in the contract.

2. The words “more or less,” added to a given quantity expressed in a contract, do not create such ambiguity in its terms as to render parol explanation admissible.

3. In interpreting any written instrument such meaning must be given it, if possible, as will give effect to all its parts.

4. Where a proposal for a contract is made, its acceptance coupled with a modification is, in law, a rejection, and it becomes, in its modified form, a new proposal.

APPEAL from the St. Louis Circuit Court, BOYLE, J.

Reversed and remanded.

T. A. & H. M. POST, for the appellants: The effect of the words “more or less” used in a contract is to permit only a slight variation from the specific amount named.-- Cross v. Elgin, 2 Barn. & Adol. 110; Patterson v. Judd, 27 Mo. 567; Iron Co. v. Parsons, 5 Gray, 591; Cabot v. Winsor, 1 Allen, 546; Blaney v. Rice, 2 Pick. 64, 550; McConnell v. Murphy, 21 U. S. 609.

CLINE, JAMISON & DAY, for the respondent: The writing was an imperfect instrument of contract on the part of the plaintiff, and does not import an obligation on their part as to the property to be delivered, with that degree of certainty that is necessary in order to exclude parol evidence in relation to it.-- Rollins v. Claybrook, 22 Mo. 408. The written memorandum does not purport to be a complete expression of the entire contract, and parol evidence was correctly admitted to supply what was omitted.-- Moss v. Green, 41 Mo. 389; McDonald v. Longbottom, 1 El. & El. 977; Life Assn. v. Cravens, 60 Mo. 388; O'Neil v. Crain, 67 Mo. 250; 1 Greenl. on Ev., sect. 284a, and cases cited.

THOMPSON, J., delivered the opinion of the court.

We had no doubt about this case upon the argument, but, as it involves a considerable amount and a question of some importance in the interpretation of contracts, we have looked carefully through the record and printed arguments to see if we could discover anything which would change our first impressions.

It is an action for a part of the purchase-money of a quantity of old iron sold by the plaintiffs to the defendant corporation. The defence is a counter-claim, the effect of which is that the plaintiffs contracted to sell to the defendant a greater quantity of iron than the amount which they actually delivered to it, and that, the price of iron having risen, the defendant was damaged, in a sum named, by such refusal to deliver the quantity contracted for. The only contested question in the case relates to the validity of this counter-claim.

The evidence shows that there was a negotiation between Mr. Harrison on the part of the plaintiffs and Mr. Fusz on the part of the defendant, which resulted in the plaintiffs sending to the defendant the following letter:--

“ST. LOUIS, July 23, 1879.

Messrs. Chouteau, Harrison & Vallé, City.

GENTS:--Your proposal for 400 tons, more or less, of wrought scrap, consisting of one, one-half, and three-eighth plate blacksmith scrap, and lot of gas-pipes from Southern Hotel, and other scrap as shown your Mr. Fusz, at $22.00 per net ton in our yard, is accepted. You can commence hauling same at your convenience. Very truly,

$22.00.

SHICKLE, HARRISON & Co.”

The defendant thereupon commenced hauling and kept on hauling until it had taken away four hundred and thirty-five tons, when it was stopped by the plaintiffs.

The position of the defendant is, that there were in the yard of the plaintiffs about six hundred tons of iron of the kind described in this letter; that it was shown by Mr. Harrison, one of the plaintiffs, to Mr. Fusz, acting for the defendant; that it was thereupon agreed that the defendant should have all the iron in the yard at $22 per ton; and that this letter is simply a notice of acceptance of the antecedent agreement, which was the contract. The testimony given by Mr. Fusz for the defendant was that the agreement embraced all the iron in the yard, supposed at the time to amount to about four hundred tons, but which in fact amounted to about five hundred and fifty or six hundred tons. The testimony of Mr. Harrison, for the plaintiffs, directly contradicts this. He says that the offer which he made to Mr. Fusz was to sell the defendant a quantity pointed out, supposed to amount to about four hundred tons, at $22 per ton, the plaintiffs to retain the balance of what there was in the yard for their own use.

This case very strongly illustrates the wisdom of the rule which excludes parol evidence in the interpretation of contracts, the terms of which are clear. Two credible business men, both of them, no doubt, conscientious and sincere, have so far misunderstood each other as to the terms of a bargain, as to contradict each other upon oath in respect to an important fact involving a large amount of money. Fortunately, the case does not present the extremity of requiring a jury to resolve the doubt which must necessarily arise between the credibility of two such witnesses, in order to settle the rights of the parties. The contract was evidenced by the letter above set forth. There was no such ambiguity as to the quantity of the iron embraced in this letter as called for parol explanation; although parol explanation might have been admissible as to the particular piles or descriptions of iron which were shown to Mr. Fusz, and which were intended to be embraced in it. Cabot v. Winsor...