Sussman, Wormser & Co. v. Sea Food Co.

• Decision Date: 19 December 1921
• Docket Number: 22145
• Parties: SUSSMAN, WORMSER & CO. v. SEA FOOD CO
• Court: Mississippi Supreme Court

90 So. 116

127 Miss. 420

SUSSMAN, WORMSER & CO. v. SEA FOOD CO

No. 22145

Supreme Court of Mississippi

December 19, 1921

APPEAL from circuit court of Harrison county, HON. D. M. GRAHAM Judge.

Suit by Sussman, Wormser & Co. against the Sea Food Company. Judgment for defendant, and plaintiffs appeal. Reversed and remanded.

Appellants a wholesale grocery concern in San Francisco, sued the appellee, a Mississippi corporation engaged in gathering canning, and selling oysters and other sea food, in the circuit court of Harrison county, for four thousand dollars claimed to have been lost by appellants on account of an alleged breach by the appellee of a contract between the parties for the sale by the appellee to the appellants of a carload of oysters; the alleged breach consisting in the failure of appellee to deliver the oysters. At the conclusion of the testimony the trial court directed a verdict for appellee, and a judgment accordingly was entered, from which the appellants prosecute this appeal.

In considering the propriety of the peremptory instruction given for appellee, the evidence should be treated as proving every fact which it tends to prove favorable to appellants. So considering the testimony, the substantial facts of the case are as follows:

On November 20, 1916, the appellants purchased from the appellee through one Taylor, a merchandise broker doing business in San Francisco, a carload of oysters to be delivered in January and February, 1917. The contract of purchase is in writing, and was signed by the parties. There are certain stipulations embodied in the contract under the head of "Conditions." Those pertinent to the questions involved in this case are contained in paragraphs 1, 6, and 7. These stipulations provide in substance that the appellee shall be excused from complying with its contract if it should be unable to gather and pack the oysters necessary to fill it, and in paragraph 6, among other things, it is provided that appellee "incurs no liability hereunder if not procured, or not enough procured to fill all orders;" and in paragraph 7 it is provided that--"Specifications are to be furnished by buyer on or before the 1st day of January, 1917, following the date of contract, otherwise the fulfillment of this contract is at seller's option."

And in section 6 there is a clause providing that appellee shall not be liable "for failure to deliver or from delay in delivery, where such failure or delay shall be caused or occasioned by any accident" beyond the control of appellee.

The oysters purchased nor any part of them were delivered in January and February, 1917. There was much correspondence between the appellants and appellee, and also between each of them and Taylor, the broker in San Francisco who negotiated the sale of the oysters for the appellee, in reference to the delivery of the oysters, and especially touching the postponement of the delivery by appellee. This correspondence shows that appellee claimed that it could not procure and pack the oysters in time for delivery in January and February, 1917. By the correspondence referred to, which was offered in evidence by appellants, the time of delivery was postponed from time to time, until finally it was fixed by both parties at a date not later than March 1, 1919. In a letter of June 8, 1918, from appellants to appellee, and reply thereto by appellee under date of June 14, 1918, it was distinctly agreed between the parties that delivery should be made on or before March 1, 1919. This was not done and appellants sued appellee for the difference between the contract price of the oysters and their market price at the time and place of delivery. This correspondence tends to show that, if appellants failed to comply with paragraph 7 of the "conditions" in the contract which required them to forward specifications to appellee on or before January 1, 1917, appellee claimed no advantage on account thereof, but, on the contrary, condoned it by acknowledging receipt of the specifications at a later date and agreeing to ship the oysters.

The appellants offered testimony, most of which was ruled out of court, tending to show that appellee had no excuse for not shipping the oysters, that it had the oysters on hand and packed, and could have shipped them; that at about the same time this carload was purchased by appellants the appellee, through the said Taylor, the broker in San Francisco, sold to various parties in that city oysters of the same character and quality which were delivered.

Reversed and remanded.

Rushing & Guice, for appellant.

That part of appellee's notice under the plea of general issue, to which we refer to, and about which the court below agreed with appellee, reads as follows: "That there was no meeting of minds for a novation of the old contract or any new contract was entered into and no consideration from plaintiff to defendant passing or moving. All of the court's erroneous rulings were made with the idea that this statement correctly announced the law. We respectfully submit that this is not the law applicable to the facts of the instant case.

In 2 Mechem on Sales (an authority that this honorable court has quoted heretofore as a high authority) section 807 it is said: "But in order that the old contract shall be held discharged by implication 'the intention to discharge the original contract must clearly appear from the inconsistency of the new terms, with the old a mere postponement of performance, for the convenience of one of the parties, does not discharge the contract.'

"This question has often arisen in contracts for the sale and delivery of goods where the delivery is to extend over some time, the purchaser requests a postponement of delivery, then refuses to accept the goods, at all, and then alleges that the contract was discharged by the alteration of the time of performance that a new contract was thereby created and that the new contract is void for noncompliance with the statute of frauds.

"But the courts have always recognized the distinction between a substitution of one agreement for another and a voluntary forbearance to deliver at the request of another and will not regard the latter as affecting the rights of the parties further than this, that if a man asks to have performance of his contract postponed he does so at his own risk."

And again: "Akin also to the subject discussed in preceding sections is that which arises where, at the request of one of the parties and before the time for performance has expired, the time or place of delivery has been changed, such changes may be so great or made under such circumstances as to amount to an abandonment of the old contract and the making of a new one; in which case the new contract must be so made as to satisfy the requirements of the statute of frauds in all cases to which that statute is applicable. Such alterations, however, do not usually result in the making of a new contract, but are rather to be construed as a forbearance or waiver, by the one party at the request of the other, of a strict performance of the contract according to its terms, but leaving the contract otherwise unimpaired and entitling either party at any time within the original period to insist upon its performance; while, on the other hand, a performance at the new time or place assented to is a performance of the original contract.

"It is indispensable, however, that the party seeking to enforce the contract upon a request for performance made after the expiration of the period originally fixed shall be the forbearing one, for otherwise he cannot show that he was ready and willing to perform at the time or place originally agreed upon; and he would be compelled to rely upon the consent of the other to a substituted performance, which consent would not be binding without consideration and the elements of a new contract."

In the note to section 1151, Mechem on Sales, it is said: "In Bacon v. Cobb, 45 Ill. 27, where the defendants were sued for not delivering corn as they had agreed, it appeared that the plaintiffs, at the defendant's request, had several times extended the time and had changed the place of delivery. Still the corn was not delivered and in the action to recover damages it was urged by the sellers that these changes amounted to a new contract and that the plaintiffs could not recover on the original one on which they had declared. But the court held that recovery could be had, saying: 'Numerous authorities might be cited to the point that where a party agrees to accept the thing to be delivered at a time or place other than that stipulated, a performance of this by the other party is equivalent to a performance of the original undertaking . . . It would be strange law, indeed, if the defendants were allowed to say that, inasmuch as you gave us further time in which to perform our contracts, and we did not comply, you have no right to an action against us on our original contract.'" Citing McCombs v. McKenna, 21 Watts & S. (Pa.) 216, 37 Am. Dec. 404; Cummings v. Arnold, 3 Metc. (Mass.) 486, 37 Am. Dec. 155; Robinson v. Batchelder, 4 N.H. 40; Richardson v. Cooper, 25 Me. 450; Cuff v. Pennl, 1 Maule & Sel. 21; Watkins v. Hodges, 6 H. & J. (Md.) 38; Ogle v. Vane (1867), L. R. 2 Q. B. 275.

One consideration will support all the provisions of a contract if such was the intention of the parties. Therefore if the agreement is but the completion of a former contract it has the original consideration for its support, as when the contract calls for the giving of bond for its faithful performance, such bond is not without consideration merely because it was executed after the contract. The letting of the contract is sufficient consideration for the bond, or...