Smith v. St. Louis Beef Canning Co.

• Decision Date: 02 January 1884
• Citation: 14 Mo.App. 522
• Parties: JAMES A. SMITH ET AL., Appellants, v. ST. LOUIS BEEF CANNING COMPANY, Respondent.
• Court: Missouri Court of Appeals

14 Mo.App. 522

JAMES A. SMITH ET AL., Appellants,

v.ST. LOUIS BEEF CANNING COMPANY, Respondent.

St. Louis Court of Appeals, Missouri.

Jan. 2, 1884.

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

Reversed and remanded.

KLEIN & FISSE, for the appellants: The plaintiffs were entitled to a trial by jury, and the court erred in denying a jury trial.-- Davis v. Morris, 36 N. Y. 569; Ragan v. McCoy, 29 Mo. 356; The State ex rel. v. Meagher, 44 Mo. 356; Peacock v. Nelson, 50 Mo. 256; Kitchen v. Railroad Co., 59 Mo. 514; Wolff v. Schaffer, 4 Mo. App. 367; Pitcher v. Hennessey, 48 N. Y. 415. Upon the case made by the evidence, the so-called “decree” or the judgment rendered by the circuit court, is clearly against right and justice, and is also against the law governing such matters.--Kerr on Fraud and Mistake (Bump's ed.), 409, note, 421, 436; Mead v. Insurance Co., 64 N. Y. 455; De Jarnett v. Cooper (Cal. S. Court), 13 Cent. L. J., 251; Allen v. Carter, 8 Mo. App. 485; Botsford v. McLean, 42 Barb. 445; Macalpine v. Swift, 1 Ball. & B. 285, 293; Diman v. Railroad Co., 5 R. I. 130.NOBLE & ORRICK, for the respondent: The cause was triable before the court, without the intervention of a jury, because of the equitable defence or cross-bill.-- Freeman v. Wilkerson, 50 Mo. 554. When an instrument is drawn and executed which professes or is intended to carry into execution an agreement, whether in writing or by parol, previously entered into, but which by mistake of the draftsman, either as to fact or law, does not fulfil, or which violates the manifest intention of the parties to the agreement, equity will correct the mistake, so as to produce a conformity of the instrument to the agreement.-- Hunt v. Rousmaniere, 1 Pet. 13; Cassidy v. Metcalf, 66 Mo. 528, 529; Leitendorfer v. Delphy, 15 Mo. 160; 1 Story's Eq. Jur., sect. 152; Reed v. Root (Iowa), N. W. Rep. 323. The mistake must be mutual and clearly proved.-- Mead v. Insurance Co., 64 N. Y. 455; 1 Story's Eq. Jur., sect. 157.

LEWIS, P. J., delivered the opinion of the court.

Plaintiffs claim damages in the sum of $24,750 for the breach of a contract whereby the defendant corporation was to purchase and receive from them 8,000 tons of ice during the months of April, May, June, July, and August, 1880, at prices agreed upon. The petition alleges that the plaintiffs had delivered about 3,000 tons, when, in July, 1880, the defendant would not permit them to deliver any more. The answer denies generally, and adds, by way of equitable defence, that the contract, as set forth in the petition, is not the contract which the parties, or either of them, agreed upon; but that by mistake of the person who undertook to state their agreement in writing, the understood terms were not truly expressed, and terms were made to appear in the writing, which were not intended by either party. The brief of counsel for the plaintiffs presents the two forms of contract, as averred and disputed, in parallel columns, thus:--

“EXHIBIT A”--THE CONTRACT AS EXECUTED.

ST. LOUIS, Mo., April 27, 1880.

The St. Louis Beef Canning Co.:

GENTLEMEN--We agree to deliver, free of charges, in cars on your tracks at the National Stock Yards, Illinois, eight thousand tons of prime, merchantable ice during the months of April, May, June, July, and August, 1880, at the following prices, viz.:--

For the month of April, $6.00 per ton--2,000 pounds.

For the month of May, $6.65 per ton--2,000 pounds.

For the month of June, $7.00 per ton--2,000 pounds.

For the month of July, $7.00 per ton--2,000 pounds.

For the month of August, $7.00 per ton--2,000 pounds.

Very truly yours,

JAS. A. SMITH & SON.

Accepted April 27, 1880, it being understood that the company use no ice purchased of other parties during the above period until the eight thousand tons are exhausted, provided Messrs. J. A. Smith & Sons make no default in deliveries.

THE ST. LOUIS BEEF CANNING CO.

By A. S. PATTERSON, Secretary.

DEFENDANT'S VERSION OF CONTRACT.

ST. LOUIS, Mo., April 27, 1880.

St. Louis Beef Canning Co.:

GENTLEMEN--We agree to deliver, free of charges, in cars on your tracks at the National Stock Yards, Illinois, such an amount of ice as you may want during the months of April, May, June, July, and August, 1880, not exceeding in all 8,000 tons of prime, merchantable ice with the privilege on your part of taking any portion of said amount during either of said months; and for such amounts thereof as you shall accept you are to pay the following prices per ton on deliveries made during the respective months as follows:--

In the month of April, $6.00 per ton of 2,000 pounds.

In the month of May, $6.65 per ton of 2,000 pounds.

In the month of June, $7.00 per ton of 2,000 pounds.

In the month of July, $7.00 per ton of 2,000 pounds.

In the month of August, $7.00 per ton of 2,000 pounds.

Very truly yours,

JAS. A. SMITH & SONS.

Accepted April 27, 1880, it being understood that the company use no ice purchased of other parties during the above period until the 8,000 tons are exhausted, provided Messrs. J. A. Smith & Sons make no default in delivery.

ST. LOUIS BEEF CANNING CO.

By A. S. PATTERSON, Secretary.

The defendant prayed that the contract be reformed in conformity with the understanding of the parties, as stated. The plaintiffs replied, denying the allegations of new matter in the answer.

When the cause was called for trial, the court denied the plaintiffs' application for a jury, and required the plaintiffs, against their objections, to assume in the outset the burden of proof on the question of damages sustained. Exceptions to these rulings were duly saved. The court heard the testimony, and rendered a final decree for the defendant.

A glance at the terms of the contract, as stated by the defendant, will suffice to prove that, if such was the real agreement between the parties, there is no ground for any recovery by the plaintiffs. The defendant, in that case, had a right to stop the delivery at pleasure. The whole controversy is thus made to turn upon the truth of the equitable defence. If that defence be maintained, there can be no propriety in inquiring about the plaintiffs' damages. If, in this state of affairs, we must adopt the language, as well as the effect, of the decision in Freeman v. Wilkerson (50 Mo. 554), “the answer of defendant converted this case into an equitable proceeding.” Counsel protest vigorously and ably against the recognition of such a transformation. To admit it, is to revive the obsolete distinctions between forms of action, in defiance of codified reform, whose very root and life-giver consists of the declaration that, “There shall be in this State but one form of action for the enforcement or protection of private rights, and redress or prevention of private wrongs, which shall be denominated a civil action.” Rev. Stats., sect. 3461.

We do not think that, in the language quoted, or in any elsewhere, our supreme court has ever intended to say that there are now, in Missouri, suits at law and suits in equity, as distinct and differing forms of action, or that one such form may be converted into the other. It is intended only to distinguish between the various sorts of rights which the court may find itself called upon to adjudicate. The pleadings may develope a case in which the right to be enforced is one of easy recognition by the principles of equity, but which the common-law rules ignore, and vice versa. The form of action is always the same. But the methods to be employed for reaching the conclusions of justice between the parties may vary, as the right belongs to the one class or the other. Thus, in the case of common-law rights to be adjudicated, the trial by jury is generally, if not always, appropriate, and its natural concomitant, the giving of instructions or declarations of law, attaches as well, when the trial is by the judge, sitting as a jury. But, when employed in the investigation of equitable rights, the court may, or may not, have the aid of a jury according to circumstances. If the equitable case be one not proper for a jury trial, or, if no jury be demanded, and the parties submit the controversy to the judge, who will then be sitting as a chancellor, instructions or declarations of law will not be proper, and, if given, will not be reviewable on appeal. The last mentioned alternative expresses the precise...