Wall v. St. Joseph Artesian Ice & Cold Storage Co.

• Decision Date: 22 May 1905
• Citation: 87 S.W. 574,112 Mo.App. 659
• Parties: PATRICK WALL et al., Appellants, v. ST. JOSEPH ARTESIAN ICE & COLD STORAGE CO., Respondent
• Court: Kansas Court of Appeals

87 S.W. 574

112 Mo.App. 659

PATRICK WALL et al., Appellants, v. ST. JOSEPH ARTESIAN ICE & COLD STORAGE CO., Respondent

Court of Appeals of Missouri, Kansas City

May 22, 1905

Appeal from Buchanan Circuit Court.--Hon. Henry M. Ramey, Judge.

AFFIRMED.

Judgment affirmed.

Jno. C Landis, Jr., for appellant.

(1) No contract to ship the cans at any specified time was concluded between these parties by the correspondence which took place on February 14, February 16 and February 19. Beach on Modern Law of Contracts (1 Ed.), 67; Bruner v. Wheaton, 46 Mo. 366; Robinson v. Railroad, 75 Mo. 498; Strange v. Crowley, 91 Mo. 287; James v. Fruit Jar Co., 69 Mo.App. 213; Williams v. Railroad, 153 Mo. 488. (2) The court erred in holding that defendant's letters of April 8 and April 15 did not constitute a waiver. Chalice v. Witte, 81 Mo.App 85; Dillon v. Masterton, 39 N.Y.S. 133. (3) Defendant's letter of April 8, written after they had contracted for the ice mentioned in their counterclaim admits that the delay would not damage them if the cans were delivered by April 20. The court erred in assessing such excessive rental damages. Ice Co. v. Mfg. Co., 29 A. 71. (4) Plaintiffs' letter of May 20, 1898, was a demand, and demand was also shown to have been made by defendant's letter of May 18, interest should accordingly have been given from June 14. (5) The court erred in refusing declarations numbered 1, 3, 5 and 6.

George W. Groves for respondent.

(1) Authorities cited under appellant's first point do not sustain the contention that no contract to ship the cans at a specified time was concluded between the parties by their correspondence. It is equally plain that plaintiff accepted the order according to the defendant's intention. (2) Defendant alleges a special contract to deliver the cans at a specified date, and claims damages for breach of the contract in that respect. The replication is a general denial. Under the pleadings the question of waiver is not in issue. Waiver is a substantive fact, and to be available must be pleaded. Bliss on Code Pl. (2 Ed.), sec. 302, p. 446; Ehrlich v. Ins. Co., 103 Mo. 231; Lantz v. King, 93 Mo. 513; Nicholas & Co. v. Larkin, 79 Mo. 264; Bank v. Hatch, 78 Mo. 13; Roy v. Bateler, 40 Mo.App. 213. Moreover, when pleaded and in issue, waiver is a question of intention to be determined by the triers of the fact. Ehrlich v. Ins. Co., 88 Mo. 255; Marcheldon v. O'Hara, 52 Mo. 526; Orange Co. v. Gorman, 161 Mo. 203. (3) Appellants' third point deals with the question of excessive damages. This question is not in the records. It was not raised in the motion for new trial and was therefore waived. Ray v. Thompson, 26 Mo.App. 437. (4) Appellants' fourth point raises the question of demand of payment. This is a question of fact which this court will not review. The fact was material only as fixing the date for computation of interest on the account sued for. (5) Appellants' complaint of the court's ruling against their request for declarations of law numbered 1, 2, 3, 5 and 6, is not well founded.

OPINION

JOHNSON, J.

Defendant, a manufacturer of ice at St. Joseph, ordered of plaintiffs, in business at Alleghany, Pa., manufacturing supplies for such factories, 750 metallic ice cans for use in the making of ice. The cans were delivered but payment of the contract price was not made because of damages claimed by defendant on account of plaintiffs' failure to deliver in the time agreed. Suit was brought by plaintiffs on April 30, 1903, as upon an account for goods sold and delivered. Defendant admitted in its answer the purchase and delivery of the articles but alleged that plaintiffs expressly agreed in the contract of sale to deliver them to defendant in St. Joseph on March 14, 1898, well knowing that they were bought for use in the manufacture of ice and if not furnished as agreed defendant would be unable to supply the demands of the summer business, and compelled to purchase ice at a price greatly in excess of the cost of manufacture to meet the requirements of its customers. It was further alleged "That said cans were not delivered until the 16th day of May, 1898. That defendant in good faith relied on plaintiffs' promise and agreement to deliver said cans at the date aforesaid, having no knowledge or notice from plaintiffs that they would not be so delivered until the season was so far advanced that cans could not be procured elsewhere in time to manufacture ice for defendant's business aforesaid so that defendant was compelled to and did purchase 900 tons of ice at the price and sum of $ 2.50 per ton for the purpose of meeting its obligations to its customers and patrons which defendant would have manufactured at a cost of $ 1 per ton if plaintiffs had delivered said cans at the time and according to said contract." Damages in the sum of $ 1,350 were claimed and judgment prayed therefor. The reply was a general denial. A jury was waived and the court after hearing the evidence allowed defendant damages upon its counterclaim in the sum of five hundred dollars, which being credited upon the account reduced the amount thereof, including the allowance of interest from the date of suit, to $ 1191.34 for which sum judgment was entered in favor of plaintiffs who appealed.

Two reasons are assigned in support of the claim of error in the refusal of the court to give a declaration of law asked by plaintiffs in the nature of a demurrer to defendant's evidence. First, it is said that time of delivery was not of the essence of the contract; and, second, that defendant waived its right to claim damages. The written contract is embodied in the following correspondence exchanged between the parties:

January 3, 1898, defendant wrote plaintiffs that it would be in the market for 750 ice cans. Plaintiffs replied, giving price. January 29 defendant asked for sample can, and on February 14 wrote as follows: "Received your sample can this morning. We will need 750 cans 11 in. x 22 in. x 44 in. inside measurement and if you can furnish us these cans in thirty days (30) at $ 2.50 each f. o. b. St. Joseph like the sample and have the bottom well riveted and well soldered, advise us by wire and much obliged." February 16 defendant telegraphed plaintiffs as follows: "Don't make any cans until you see our letter of instruction;" and on the same date defendant sent this letter: "Received your wire saying you had entered our order for 750 cans to be delivered at St. Joseph, Mo., at $ 2.50 per can. We wire you not to make cans until you hear from us. . . . That is exactly the way we want the cans made and if you can comply with requirements herein set forth make the cans at once and have them here within thirty days and ship in the name of the Wyeth Hdw. Mfg. Co., St. Joseph, via Chicago & Great Western Railroad from Chicago as we are on their line, and in case we would have to hold a few days they would accommodate us. Please confirm the above at once and oblige." To this letter the following reply was written by plaintiffs under date of February 19: "We have your esteemed favor of the 16 inst. and have entered your order in accordance therewith. We desire to thank you for the favor and will make every effort to have the cans in St. Joseph at the time indicated. However, we do not like the routing given in your letter as the price quoted was delivered and it at times is very inconvenient for us to comply with those requests of our customers."

Plaintiffs knew that the cans were intended for a special use in the making of defendant's product, and the evidence very clearly shows they were aware of the importance to defendant of prompt delivery and knew that loss would follow delay. Their letter of February 19 was an unequivocal acceptance of all of the terms imposed by defendant, including the stipulation to deliver in thirty days. The assurance, following the unconditional acceptance, that they would "make every effort to have the cans in St. Joseph at the time indicated" must be construed as the expression of purpose to comply with this strongly emphasized requirement and not as a modification thereof. The determination of questions arising from stipulations in contracts of sale relating to time of performance rests entirely upon the intention of the parties, to be collected from the language used and the circumstances. [Redlands, etc. v. Gorman, 161 Mo. 203, 1, 61 S.W. 820 Beach, Mod. Con. Law, sec. 618; St. Louis, etc. v. Bissell, 41 Mo.App. 426.] The language of the contract alone is convincing that time of performance was in the understanding of both parties to be treated as a condition precedent. Considered in connection with the circumstances, no other conclusion is admissible.

The cans were delivered by plaintiffs on May 16, 1898, just two months after the time fixed by contract. They were accepted by defendant and put into use immediately. It is claimed defendant in its acceptance of them out of time waived the damages resulting from plaintiffs' default. This subject was thoroughly discussed in the case of Redlands Orange Growers Assn. v. Gorman, supra, and the rule followed therein is founded upon unassailable reasoning and supported by the weight of authority....