Walton v. Carlisle.

• Decision Date: 12 March 1926
• Docket Number: No. 25129.,25129.
• Citation: 281 S.W. 402
• Parties: WALTON v. CARLISLE.
• Court: Missouri Supreme Court

281 S.W. 402

WALTON v. CARLISLE.

No. 25129.

Supreme Court of Missouri, Division No. 1.

March 12, 1926.

Appeal from Circuit Court, Jackson County; Charles R. Pence, Judge.

Action by Mrs. A. M. Walton against Charles D. Carlisle, doing business as the Carlisle Commission Company. Judgment for plaintiff, and defendant appealed to the Kansas City Court of Appeals, which reversed the judgment nisi, and remanded cause for retrial. Case certified and transferred to Supreme Court. Judgment nisi affirmed.

Roland Hughes and Omar E. Robinson, both of Kansas City, for appellant.

O. M. Edmonson and Spurgeon L. Smithson, both of Kansas City, for respondent.

SEDDON, C.

This action was commenced before a justice of the peace within and for Kaw township, Jackson county, upon the filing by plaintiff (respondent here) of the following statement on contract:

"Comes now the above-named plaintiff, and for her cause of action against the above-named defendant states that on or about the 22d day of March, 1920, she entered into a contract with the defendant for the sale and purchase of a large amount of hay owned by the plaintiff, which said hay was then located at and near the town of Richards, in the state of Missouri, to be delivered and paid for according to the terms of said contract, a copy of which is hereto attached and made a part hereof, marked Exhibit A.

"Plaintiff further states that, pursuant to said contract, and on or about the 23d day of July, 1920, she shipped to the defendant at Kansas City, Mo., one carload of the hay sold under said contract, which said hay was shipped in car Missouri Pacific No. 32857, and also one carload of hay shipped by the plaintiff to the defendant, under the terms of said contract, contained in Southern No. 11186, which said car was shipped on or about the 24th day of September, 1920.

"Plaintiff further states that the value of the hay contained in said cars above mentioned is, according to the terms of said contract, the sum of $500, which the defendant by his said contract agreed to pay plaintiff therefor; that demand has been made of defendant by the plaintiff for the payment of said sum of $500, but the defendant refused, and still refuses, to pay the same.

"Wherefore plaintiff prays judgment against the defendant in the sum of $500, with interest thereon at the rate of 6 per cent. per annum from October 1, 1920, the date of demand, and for her costs."

Defendant filed no pleading thereto.

Plaintiff recovered judgment in the justice's court by default, whereupon defendant (appellant here) appealed to the circuit court of Jackson county, where a trial was had de novo before a jury, resulting in a verdict and judgment for plaintiff in the sum of $500, from which judgment defendant appealed to the Kansas City Court of Appeals, which latter court reversed the judgment nisi and remanded the cause for a retrial upon the ground that plaintiff had sued upon a special written contract and had recovered upon a modification thereof. The Kansas City Court of Appeals, however, deeming its decision to be in conflict with the decision of the Springfield Court of Appeals in Chamberlain v. Thompson & Co., 213 S. W. 496, certified and transferred the cause to this court for our determination.

Plaintiff was the owner of a large quantity of hay located at or near Richards, Mo. One T. E. Belkham bought this hay for defendant receiving from defendant a commission of 50 cents per ton for his services. The sale was consummated by a written contract between plaintiff, as party of the first part, and defendant, as party of the second part, dated March 22, 1920, whereby plaintiff sold said hay to defendant, f. o. b. cars at Richards, Mo., at a stipulated price per ton, delivery as cars furnished, but within 30 days from date, weights determined at time of loading on cars at Richards, Mo. The contract was executed on March 22, 1920, by plaintiff, through her agent, one Fred Wilmot, and by defendant, Charles D. Carlisle, in person. The written contract contained these provisions:

"Should party of the second part, by reason of car shortage, be unable to secure cars necessary for above hay movement within 30 days from date, then an additional time of not to exceed 60 days may be taken by second party, if the car situation is such that this additional time is necessary to secure movement.

"At the end of the 90-day period above mentioned, party of the second Part will receive all of the above-described hay at all events, and will pay party of the first part upon estimate of three disinterested persons for all hay left on' his hands at the end of said 90-day period, to be selected, one by party of the first part, one by party of second part, and these two selected to choose the third, upon the basis of prices hereinafter named.

"Party of the second part agrees to pay party of the first part at Ft. Scott, Kan., through T. E. Belkham, the amount shown due by party of the first part upon certificate of weights at the time of the completion of the loading of each car of hay. * * *

"No damaged hay is to be loaded, and all cars to be loaded over 20,000 pounds, unless party of the first part to pay excess freight to destination.

"The estimate of the three disinterested persons above referred to, upon which settlement shall be made at the end of 90-day period, is subject to correction according to actual weights upon basis per ton prices hereinbefore mentioned when shipments actually are made; but party of the second part shall be subject to such reasonable charges as may be made for storage of said hay for the additional period after said 90-day period.

"It is understood that at the end of said 90-day period from this date, should any of said hay be left on first party's hands, she may, at her option, declare this contract, so far as such hay is concerned, terminated, and may sell said hay on the market at that time, charging party of the second part for any deficiency that may occur between the price obtained and the price herein contracted for."

The evidence discloses that there was a shortage of cars during the spring and summer of 1920, and that plaintiff's agent, Wilmot, in order to get cars promptly in which to ship the hay sold under the contract, applied to the several railroads for cars to be set or placed, not only at Richards station, but at other stations in the vicinity, so that the hay was actually loaded on the cars at several stations, including Richards. By arrangement made through Belkham, defendant allowed and paid plaintiff for the additional cost of drayage to those stations which required a longer haul than to the station at Richards. Nineteen carloads of hay in all were shipped to defendant. The 90-day period referred to in the written contract expired on June 20, 1920. Eleven ears of hay were shipped within said 90-day period, and eight cars, including the two cars in controversy, were shipped after the expiration of said 90-day period. On June 14, 1920, only 6 days before the expiration of said 90-day period, defendant wrote a letter to plaintiff's agent, Wilmot, as follows:

"As far as making an effort to get this hay out, we have made every effort that we could. We have this timothy sold, and our customers are pushing us for delivery, but Mr. Belkham has advised us that he has done everything he could to get the cars, and we have written numerous letters to the agents and superintendents of the various roads trying to get cars sent in, but without avail. We would be more than pleased to get all of this stuff loaded out right away, and, if you can offer any suggestions that will help us to get cars, we will be mighty glad to hear from you." (Italics ours.)

Nothing was done by either party to the written contract, at the end of said 90-day period, with respect to the selection of appraisers or the making of an estimate of the quantity of unshipped hay, as provided in said contract. Neither did plaintiff, at the end of said 9-day period, elect to exercise the option to declare the contract terminated and sell the remaining hay on the market, charging defendant for the deficiency between the price obtained and the contract price. Obviously, these provisions of the contract were ignored or waived by both parties; at least, they were not insisted upon by either party. When the 90-day period had nearly transpired, Wilmot, plaintiff's agent, went to see Belkham, who thereupon asked Wilmot "to keep on shipping the hay. Mr. Belkham assured me that the Carlisle Commission Company wanted to get the, hay out, and for me to continue the shipments as they had the hay sold." (Italics ours.)

The evidence tends to show that Belkham acted in behalf of defendant in most of the details relating to the transaction between the parties. The terms of the written contract were arranged by plaintiff and Belkham, representing defendant. The contract provides that payment for the hay is to be made through Belkham. Appellant's letter of June 14, 1920, discloses that Belkham endeavored to get cars in which to transport the hay. Belkham made the arrangements for the places and times of loading and shipment, and instructed plaintiff's agent as to the destination of the various shipments. The weights and bills of lading covering the several shipments were delivered by plaintiff's agent to Belkham, who issued and delivered to plaintiff drafts drawn on defendant in payment of the respective shipments. After the expiration of the 90-day period prescribed in the contract, six carloads of hay were shipped to and paid for by defendant at the price named in the written contract.

Relative to the two carloads of hay in controversy, the first car was shipped to defendant at Kansas City on July 23d, and arrived at its destination on July 29, 1920. Defendant refused to accept the car, and sent a telegram to plaintiff on July 29, 1920, that the car was "rejected account damaged hay. Advise disposition." On the same...