Shickle v. Chouteau, Harrison & Valle Iron Co.

• Decision Date: 31 October 1884
• Citation: 84 Mo. 161
• Parties: SHICKLE et al. v. THE CHOUTEAU, HARRISON & VALLE IRON COMPANY, Appellant.
• Court: Missouri Supreme Court

84 Mo. 161

SHICKLE et al.

v.THE CHOUTEAU, HARRISON & VALLE IRON COMPANY, Appellant.

Supreme Court of Missouri.

October Term, 1884.

1. Contract: CONSTRUCTION: “MORE OR LESS.”

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. Contract, Interpretation of.

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

4. ______: ACCEPTANCE WITH MODIFICATION.

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.^a1

Appeal from St. Louis Court of Appeals.

AFFIRMED.

Cline, Jamison & Day for appellant.

T. A. Post for respondent.

EWING, C.

Plaintiffs brought suit to recover a balance of $5,582.21, claimed to be due for scrap iron, sold by plaintiffs to defendant, at twenty-two dollars perton, on or about the twenty-third day of July, 1879. Defendant admitted the purchase and receipt of the iron at the price mentioned, and non-payment of the balance claimed; but by way of counter-claim and recoupment alleged that “said scrap iron was delivered in part performance of a contract made and entered into and finally completed on the twenty-third day of July, 1879, by and between plaintiffs and defendant, whereby it purchased of plaintiffs a certain lot of wrought scrap, consisting of one, one-half and three-eighth inch plate, blacksmith scrap, and a lot of gas pipe from the Southern Hotel, and all other scrap iron then pointed out and piled up in the yard of the plaintiffs, at twenty-two dollars per ton, to be moved by defendant at its convenience; that said bid was accepted by plaintiffs in writing (and the sale made effectual and complete in law), a copy of which is herewith filed, and marked “Exhibit A.”

“Exhibit A” was as follows:

“ST. LOUIS, July 23, 1879.

Messrs. Chouteau, Harrison & Valle, City.

GENTS.--Your proposal for four hundred 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 twenty-two dollars per net ton in our yard, is accepted. You can commence hauling same at your convenience.

Very truly,

$22.00

SHICKLE, HARRISON & Co.”

On the trial the defendants read the exhibit “A,” and then offered Paul Fusz as a witness who testified that he was secretary of defendant and had negotiated the sale with plaintiffs; that the iron was at the time in different piles stacked up around plaintiffs' yard. Witness was then asked the quantity of iron at the time of the purchase, and...