Steffen v. Mississippi River & Bonne Terre Railway Co.

• Decision Date: 15 May 1900
• Parties: STEFFEN, Appellant, v. MISSISSIPPI RIVER & BONNE TERRE RAILWAY COMPANY
• Court: Missouri Supreme Court

56 S.W. 1125

156 Mo. 322

STEFFEN, Appellant, v. MISSISSIPPI RIVER & BONNE TERRE RAILWAY COMPANY

Supreme Court of Missouri, First Division

May 15, 1900

Appeal from St. Louis City Circuit Court. -- Hon. Jacob Klein Judge.

Affirmed.

Charles & Lackey for appellant.

(1) Where one of the parties to a continuing contract notifies the other that he will not abide by its terms, such other party may treat the entire contract as at an end and sue for the breach; and he is not bound to offer to perform on his part. Pond v. Wyman, 15 Mo. 183; Black River Lumb. Co. v. Warner, 93 Mo. 389; Hinckley v Pittsburg Steel Co., 121 U.S. 272; Anvil Mining Co v. Humble, 153 U.S. 551; Claes & Lehnbeuter Mfg. Co. v. McCord, 65 Mo.App. 509. (2) And where the defendant carrier occasions a breach of contract by refusing, in advance of the time for performance, to receive goods for shipment according to the terms of the contract, it can not defend on the ground that the plaintiff did not have the goods contracted to be shipped. Taylor v. Steamboat Robert Campbell, 20 Mo. 254. (3) The damages sought to be recovered in this suit are based upon the profits expected to be realized by the plaintiff from the performance of certain contracts collateral to the one sued upon. Such profits were in contemplation of the parties at the time of entering into the contract. 2 Sedg. on Damages (8 Ed.), sec. 740; Jordan v. Patterson, 67 Conn. 473; Booth v. Mill Co., 60 N.Y. 487; Blumenthal v. Stahle, 98 Ia. 722; Hydraulic Eng. Co. v. McHaffie, 4 Q. B. Div. 670; Fletcher v. Taylor, 17 C. B. 21. (4) If a carrier contracts to haul the seller's goods at a certain rate and refuses to do so; and if at the time of making the said contract, the parties thereto had in contemplation certain collateral contracts entered into, or about to be entered into, by the seller on the strength of the contract with the carrier, the profits reasonably expected to be derived from the fulfillment of such collateral contracts are recoverable by way of damages upon breach of the contract of shipment. Jordan v. Patterson, 67 Conn. 473; Booth v. Mill Co., 60 N.Y. 487; Wakeman v. Mfg. Co., 101 N.Y. 205; Rogan v. Railroad, 51 Mo.App. 674; Connoble v. Clark, 38 Mo.App. 482; Blumenthal v. Stahle, 98 Ia. 722; Grindle v. Eastern Express Co., 67 Me. 317; Trigg v. Clay, 88 Va. 330; Cobb v. Railroad, 38 Ia. 631; I. C. Railroad, Co. v. Cobb, 64 Ill. 128; Hadley v. Baxendale, 9 Exch. 353; 2 Sedg. on Damages (8 Ed.), sec. 740; Hydraulic Eng. Co. v. McHaffie, 4 Q. B. Div. 690; Schulze v. Railroad, 19 Q. B. Div. 30; Waters v. Towers, 8 Exch. 401; Fletcher v. Taylor, 17 C. B. 21. (5) When a carrier, having contracted to haul a seller's goods at a certain rate, refuses to do so, the seller may recover in damages the profits reasonably expected to be derived from the sale of the said goods, provided it appear that the carrier knew at the time of entering into the contract of shipment that the goods were to be transported for sale. Connoble v. Clark, 38 Mo.App. 482; Stewart v. Patton, 65 Mo.App. 24; Hinckley v. Beckwith, 13 Wis. 34; Jordan v. Patterson, 67 Conn. 473; Cobb v. Railroad, 38 Ia. 631; Trigg v. Clay, 88 Va. 330; Hadley v. Baxendale, 9 Exch. 353; Frazer v. Gaudet, L. R. 6 Q. B. 199; Horne v. Railroad, L. R. 7 C. P. 583; Cockman v. Ashland, 54 Wis. 628; Salvo v. Duncan, 49 Wis. 155.

Nagel & Kirby for respondent.

(1) The first question to be considered is: Was there a contract? We submit there was not, because, (a) The parties had never come to an understanding with reference to the subject-matter of the correspondence. It does not appear from the correspondence that the parties at any time had in mind anything definite as to quantity or destination of shipment. (b) The alleged contract lacks all mutuality, and was, therefore, not binding upon either party. C. & G. W. Railroad Co. v. Dane, 43 N.Y. 240; Lindell v. Rokes, 60 Mo. 249; Lewis v. Ins., 61 Mo. 534; Glover v. Henderson, 120 Mo. 367; Jones v. Durgin, 16 Mo.App. 370; Railroad v. Jones, 53 Ill.App. 431; Mers v. Ins. Co., 68 Mo. 127; Glass v. Rowe, 103 Mo. 513; Thorne v. Deas, 4 Johns. 84; Campbell v. Lambert, 36 La. Ann. 35; Stembridge v. Stembridge's Adm., 87 Ky. 91. (2) It was plaintiff's duty, in any event, to reduce the damages as much as he reasonably could. This principle is elementary. Douglass v. Stephens, 18 Mo. 362; Waters v. Brown, 44 Mo. 302; Railroad v. McGrew, 104 Mo. 282. It has been repeatedly applied in cases of carriers; and in the absence of unusual conditions the measure of damages is the difference between the rate claimed, and the rate at which the same goods could have been shipped. Spurlock v. Railroad, 93 Mo. 530; Railway v. Flanagan, 113 Ind. 488; Railroad v. Ragsdale, 46 Miss. 458; Cooper v. Young, 22 Ga. 269; Ogden v. Marshall, 8 N.Y. 340; Grund v. Prendergast, 58 Barb. 216; Bailey v. Damon, 3 Gray, 92. (3) And in any event the damages insisted upon in this case are too remote, uncertain and speculative to be admitted. Taylor v. Maguire, 12 Mo. 313; Taylor Mfg. Co. v. Hatcher & Co., 39 F. 440; Hunt v. Railroad, 13 Sawy. 516; Montgomery Co. U. A. Soc. v. Harwood, 126 Ind. 440; Baltimore Railroad Co. v. Pumphrey, 59 Md. 390; Engelsdorf v. Sire, 64 Hun. 209; Reed Lumber Co. v. Lewis, 94 Ala. 626; Griffin v. Colver, 16 N.Y. 489; Railroad v. Ragsdale, 46 Miss. 458.

OPINION

VALLIANT, J.

This is a suit for damages for the breach of an alleged contract relating to freight rates.

The amended petition, in brief summary, omitting details, is to the effect that in April, 1896, defendant knew that plaintiff was about to enter into a contract with a concern that owned a quarry in southeast Missouri to ship from its quarry to St. Louis and East St. Louis 500 car loads of crushed granite in 1896 and a like quantity in 1897, and as much more as plaintiff could handle, and thereupon defendant for a valuable consideration agreed with plaintiff to carry the granite for 80 cents a ton to St. Louis and $ 1 per ton to East St. Louis, up to the 31st December, 1896, and to renew the contract at the same rate for 1897, provided plaintiff shipped 500 car loads during 1896; that upon the faith of this agreement plaintiff concluded a contract with the quarry company to lease a portion of the quarry for two years, agreeing to pay it a royalty of ten cents a ton for crushed granite produced. The petition then avers that after this contract had been entered into with the quarry company, the defendant refused to perform its contract with the plaintiff, and thereby the plaintiff was unable to ship granite at a profit, and sustained $ 25,000 damages in the loss of profits on the re-sale of the granite, for which, with costs, judgment is prayed.

The defendant by its answer denied that it entered into the contract alleged, stated that it was a railroad corporation, operating a railroad under the laws of this State and as such was in duty bound and in fact was ever ready and willing to furnish transportation to plaintiff, but that he at no time offered to the defendant granite for shipment, either under his alleged contract or on any other terms; that in fact plaintiff was at no time prepared to ship crushed granite and was not at any time since the date of the alleged contract in a position to operate the quarry or ship crushed granite therefrom, and has sustained no loss. The reply denied the allegations in the answer and averred that before plaintiff could prepare the granite for shipment, defendant refused to carry out its contract and so notified the plaintiff, whereby defendant waived a tender of shipment.

When the cause came to trial the defendant objected to any evidence being heard in support of the amended petition on the ground that it did not state facts constituting a cause of action, which objection was overruled, and the trial progressed. The testimony introduced by plaintiff tended to show that he had been in the granite and contracting business for six or seven years, and was on April 11, 1896, about to lease Turpin quarry, situated in St. Francois county, very near defendant's tracks; the nearest other railroad was six or eight miles from the quarry, and was reached only over rough county roads; that plaintiff was also about to enter into a contract to furnish 10,000 tons of crushed granite for use in the erection of what is known as the Liggett & Meyers Tobacco building in St. Louis, and with these objects in view wrote the defendant the following letter:

"Bonne Terre, Mo., April 11, 1896.

"Mr J. Burns, Supt. M. R. & B. T. Ry. Co., Bonne Terre, Mo.

"Dear Sir:

"I am about to enter into a contract with the Southeast Missouri Stone & Lumber Company to ship five hundred cars crushed granite out of their quarry in the year 1896 also, five hundred cars in the year 1897, or as many more as I can ship. I would like to get a rate per car of twenty-five tons to thirty, and over, delivered at Liggett & Meyers' new building, situated on Folsom avenue near the Pacific railroad. I must have at least four cars per day, beginning about ten days from date, every day until the 1st day of September, 1896. I would also like to get a rate for two or three cars per day to your Miller Street yards, St. Louis; also, East St. Louis. I expect to invest about fifteen thousand dollars in machinery in a plant located in the above mentioned quarries; therefore, I would like to get rates so I may know what I may expect to pay for freight. I understand that I would get a rate to Liggett & Meyers' for $ 20 per car. You will please let me know as soon as possible, as I have to sign the contract with Liggett & Meyers, and furnish a bond to deliver the granite at the rate of 100 tons per day, 10,000 tons all told. The quarry on your road is known as Turpin...