Taussig v. The Southern Mill and Land Company
| Decision Date | 02 April 1907 |
| Parties | TAUSSIG, Respondent, v. THE SOUTHERN MILL AND LAND COMPANY, Appellant |
| Court | Missouri Court of Appeals |
Appeal from St. Louis City Circuit Court.--Hon. Matt. G. Reynolds Judge.
REVERSED AND REMANDED.
STATEMENT.--On January 16, 1903, the plaintiff and defendant (a corporation) entered into the following contract:
"SOUTHERN MILL AND LAND COMPANY,
St Louis, Mo., Jan. 16, 1903.
"About 95,000 ft." Common and Better Sap Gum Bandsawn at $ 13.50 per M ft. This being the balance on your order No. 641.
"About 175,000 ft. 1" Common & Better Sap Gum at $ 13.00 per M ft.
"4 Cars 1" Cull Gum at $ 11.00 per M ft. N. Market St.
The terms printed on defendant's billheads, referred to in the contract and thereby incorporated in it, read as follows:
"Terms 60 days or 2 per cent discount for cash after deducting freight, if remitted within ten days from the date of the invoice."
The petition alleged a failure on the part of the defendant to deliver one hundred and three thousand feet of the common and better sap gum lumber and a failure to deliver any of the cull gum lumber mentioned in the contract.
The answer admits that after delivering certain portions of the common and better sap gum lumber, defendant cancelled the contract and refused to make further deliveries, for the reason the plaintiff withheld a portion of the payments due on the lumber delivered, in violation of the terms of the contract, and that plaintiff made unfair measurements and inspections of the lumber shipped him.
The reply denied that plaintiff breached the contract, and further alleged, that if there were any breaches of the contract, by plaintiff, as alleged in the answer, they had been waived by the defendant.
The evidence for plaintiff shows that defendant failed to ship one hundred and three thousand feet of the common and sap gum lumber, and failed to deliver any of the cull lumber. The last carload of lumber (car No. 523) arrived in St. Louis on May twenty-fifth, and on the seventeenth of the following June, defendant cancelled the contract. Plaintiff testified that on June fifth, he had a conversation with A. B. Pierce, treasurer of the defendant company, at his office in the city of St. Louis, about future deliveries, and Mr. Pierce agreed that thereafter the company would ship one carload of the common and better sap gum lumber each week, and one carload of the cull lumber every two weeks; that if this agreement had been kept, all the lumber would have arrived before the end of August. Plaintiff offered evidence tending to show that the market value of common and better sap gum lumber, in the city of St. Louis, during the months of June, July and August, 1903, was seventeen dollars and fifty cents per thousand feet.
Defendant's evidence is that plaintiff made his remittance to pay for lumber by checks sent through the mail; that prior to June fifth, plaintiff deducted two per cent from the net amount of several carloads of lumber, although the remittances were not made for more than ten days after the date of the invoices, and defendant objected and protested against this discount on its bills. Plaintiff, however, claims that the invoices should have been dated on the day the lumber arrived in St. Louis.
On March 24, 1903, defendant addressed the following letter to plaintiff:
"Mr. L. J. Taussig,
Commercial Bldg., City.
On April twenty-seventh the defendant shipped plaintiff a carload of lumber (car No. 523) from Conran to Catron, Missouri, where its mills are situated, and made out an invoice of the shipment, dated the same day. The plaintiff received the shipment and indorsed the following statement on the invoice:
So that the invoice with the notations thereon appeared as follows:
"SOUTHERN MILL AND LAND COMPANY,
HARDWOODS AND YELLOW PINE.
Mills at Conran, Mo., Catron, Mo.
General Offices: Security Building.
St. Louis, Mo., April 27th, 1903.
Sold to L. J. Taussig,
St. Louis, Mo.
F. O. B. St. Louis.
And on June fifth or sixth, plaintiff mailed defendant a check for two hundred and forty-two dollars and seventy-four cents in payment for the carload of lumber. Defendant returned the check for the reason it was short $ 4.96. Plaintiff remailed the check to the defendant and inclosed it in the following letter:
In answer to this letter defendant wrote as follows:
St. Louis Mo., June 17th, 1903.
Pierce testified that he did not, on June fifth, or at any other time, say to the plaintiff that the defendant company would thereafter ship one carload per week of the common and better gum lumber and one carload of the cull lumber every two weeks; that nothing was said in the conversation as to when the lumber should or would be shipped.
The court to whom the issues were submitted found for plaintiff and assessed his damage at the sum of $ 697.53. A timely motion for a new trial was filed by the defendant, which the court overruled and rendered judgment for the plaintiff, from which judgment defendant appealed.
Judgment reversed and cause remanded.
Chilton Atkinson for appellant.
(1) A refusal to make payment in accordance with the terms of the contract is a breach of the contract. St. Regis Co. v. Lumber Co., 85 N.Y.S. 1034; Town v. Jepson, 95 N.Y. 742; Palmer v. Breen, 24 N.W. 322, 34 Minn. 39; Sage v. Purcell, 90 Ill.App. 16; Purcell v. Sage, 200 Ill.App. 342; Forge Co. v. Corbin, 182 Mass. 590; Smith v. Keith, etc., Co., 36 Mo.App. 567. (2) When lumber is shipped to be delivered, and the contract specifies that the vendee shall pay the freight and deduct the same from the invoice price, the railroad company is the agent of the vendee, and the delivery is made when the lumber is placed upon the cars. The stipulation for delivery in such case only amounts to a guaranty of freight rates. Werner Co. v. Ferree, 201 Pa. St. 405; Gill v. Johnson Co., 84 Mo.App. 456. (3) The rule that the buyer may recover on breach of contract, the difference between the contract price and the market value of the goods is subject to the qualification that the buyer must use reasonable diligence to mitigate the damages. Coal Co. v. Coal Co., 47 S.E. 116; Ice Co. v. Tamm, 90 Mo.App. 189; Hazzard v. Hardison, 114 N.C. 482.
J. Clarence Taussig for respondent.
(1) The right to rescind a contract must be exercised promptly and upon the happening of the event which gives origin to that right and not afterwards; and if this be not done, when default occurs, as for instance where payment of the purchase money is not made at the time appointed, the right to rescind must be then exercised, or will be waived. Melton v Smith, 65 Mo. 315; Lap v. Ryan, 23 Mo.App. 436; Robinson v. Siple, 129 Mo. 208; Cahn v. Reid, 18 Mo.App. 115; Johnson Co. v. Railroad, 52 Mo.App. 407; Taylor v. Short, 107 Mo. 384. (2) Respondent having paid all that was due appellant for car 523 appellant had no right to rescind the contract. The discount...
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