Wharton v. Missouri Car Foundry Co.

• Decision Date: 10 April 1876
• Citation: 1 Mo.App. 577
• Parties: CLIFTON WHARTON et al., Respondents, v. MISSOURI CAR FOUNDRY COMPANY, Appellant.
• Court: Missouri Court of Appeals

1 Mo.App. 577

CLIFTON WHARTON et al., Respondents,

v.MISSOURI CAR FOUNDRY COMPANY, Appellant.

St. Louis Court of Appeals, Missouri.

Apr. 10, 1876.

1. It is not competent to show a parol modification of a written contract after its terms have been broken, and without any consideration to support the alleged new agreement.

2. Time is not necessarily of the essence of a contract; and, where goods are to be delivered at a certain date, and are received and retained after the date fixed by the agreement for their delivery, it will be held such an interpretation of the contract, by the act of the party interested, as to work a waiver of the delay.

APPEAL from St. Louis Circuit Court.

Affirmed.

George P. Strong, for appellant, cited: Davis v. Talcott, 12 N. Y. 188; Russell et al. v. State Ins. Co., 55 Mo. 592; Brown on Stat. Fr. (3d ed.), secs. 306-308; Mattison v. Wescott, 13 Vt. 261; Thompson v. Hudson, 4 H. L. Rep. Cas. 16, 17; 3 Ph. on Ev. (4th Am. ed.) 378; Roberts on Fr. (2d Am. ed.) 89; Brown on Stat. Fr. (3d ed.), secs. 423, 432, 433, 434; 1 Greenl. on Ev. (2d ed.), sec. 304; Cummings v. Arnold, 3 Metc. 489, et seq.; Monroe v. Perkins, 9 Pick. (Mass.) 298; Bunce v. Beck, 43 Mo. 280; Bailey v. Johnson, 9 Cow. 115; Fleming v. Gilbert, 3 Johns. 530; Dearborn v. Cross, 7 Cow. 48; 3 Ph. on Ev. (4th Am. ed.) 355, note 940; Allen v. Jarvis, 20 Conn. 38; Cummings v. Dennett, 26 Me. (13 Shep.) 401; Sewall v. Fitch, 8 Cow. 219; 3 Ph. on Ev. (4th Am. ed.) 365.

Noble & Orrick, for respondents, cited: Eddy v. Baldwin, 32 Mo. 369; Green v. Gallaher, 35 Mo. 226; Henning v. United States Ins. Co., 47 Mo. 431; Hume v. Taylor, 63 Ill. 43; Cummings v. Arnold, 3 Metc. 486; Goss v. Lord Nugent, 5 B. & Ad. 65; 3 Ph. on Ev. (4th Am. ed.), secs. 1466, 1467; Bunce v. Beck, 43 Mo. 266; 12 Wend. 446; 13 Pick. (Mass.) 446; 4 N. H. 40; Stowell v. Robinson, 3 Bing. (N. C.) 928; 1 Ph. on Ev. (4th Am. ed.) 559, 561, 562; Marshall v. Lynn, 6 M. & W. 109; Dole v. Stimpson, 21 Pick. (Mass.) 387; Harvey v. Graham, 5 Ad. & E. 73, 74.

BAKEWELL, J., delivered the opinion of the court.

This is a suit for damages for breach of contract. It appears that plaintiffs, who are manufacturers in Pittsburgh, and defendant, which is a corporation engaged in car building in St. Louis, entered into a written contract, the terms of which are contained in a letter of proposals dated November 1, 1872, addressed by defendant to plaintiffs, and at that date accepted by plaintiffs in writing.

The letter is as follows: “We propose to contract with you for three hundred tons of bar iron of freight car specification, at $4.90 per 100, free from rates, cut to length where required, delivered in East St. Louis, four months settlement from date of receipt. One hundred tons to be delivered in November, and same in December and January.”

Plaintiff delivered to defendant, under this contract, 136 tons of bar iron, which were accepted and paid for; of this by far the greater portion was received in November, but a considerable part was not received until during December. Plaintiff claims that the specifications were to be furnished by defendant on the first of every month; that no specifications were ever received, except those sent on November 1; that, the weight of the articles not being given, these specifications amounted to 136 tons, which were all delivered, as before stated, and of which 100 tons were shipped before November 26; that plaintiffs frequently demanded the specifications for December and January, but that defendant refused to furnish them, and refused to allow plaintiffs to carry out their contract; that iron declined in price about $10 or $12 a ton during the months of December and January, and that they were damaged by this breach of contract. Plaintiffs ask in their petition for $3,000 damages.

On the other hand, it is claimed by defendant that the specifications were not to be sent on monthly; that there was a delay in the forwarding of the supply of bars required by the contract to be sent on in December, and that the contract was modified by a parol agreement between defendant and a duly authorized agent of plaintiffs, one Hatry, to the effect that defendant was to receive, and plaintiffs to deliver, the remaining 164 tons before the end of February, for such prices as ruled on February 1st, which defendant says was $4.40 per hundred; that specifications were forwarded to plaintiffs in accordance with this modified agreement, but the iron was never sent on.

Defendant claimed that, by this breach of contract on the part of plaintiffs, he was damaged $1,000.

From letters in evidence it appeared that plaintiffs, on December 5th, wrote to defendant, urging it to send on its specifications and calling attention to the delay; that this letter was received and answered on December 9th, and the specifications promised; that on December 20th defendant wrote to plaintiffs as follows: “Do you not think it would be to your interest to cancel that part of our contract relating to January? The price of iron has settled materially, and we are now contracting at lower prices, based on decline.” On December 24th plaintiffs answered, refusing to cancel.

It is claimed by defendant that after that date the contract was modified by Hatry. Hatry swears that he never made any such modification; that he merely received the proposition, to be sent to his employers, at Pittsburgh, for their action. He also swears that he was the general, and only traveling, agent of plaintiffs, but had no authority to sell below card rates, and had no authority to modify the contract.

Clifton Wharton, one of the plaintiffs, swears to the same thing, and that they refused to modify the contract in any way. In this he is corroborated by letters, his correspondence with defendant showing clearly that he required adherence to the original agreement. There was evidence that Hatry sold iron, collected money, and settled adjustments for plaintiffs, and that they recognized his actions in this respect. Whether, in making adjustments, he acted under instructions, the witness did not know. McWilliam, president of defendant, swears that he made the original contract with Hatry, and that Hatry did not refer to any instructions. Relying upon this evidence as to Hatry's authority as agent of the plaintiffs, and as foundation for evidence of a verbal modification of the contract sued on, between defendant and Hatry, as agent, defendant offered to introduce evidence tending to show that on January 3, 1873, by a verbal agreement between defendant and Hatry, as agent of plaintiffs, the contract sued on was modified, and a new contract, for the same articles of manufacture, at a reduced price, substituted for the one in suit, and that defendant offered to comply with this last agreement, and sent specifications in pursuance thereof, which plaintiffs refused to fill.

To this evidence plaintiffs objected, because said modifications were not in writing. The objection was sustained, and defendant excepted.

The instructions granted for plaintiffs and defendant, and defendant's instructions refused, are noticed in the body of the opinion.

There was a verdict and judgment for plaintiffs for $1,583.40. A motion for a new trial having been made and overruled, and all exceptions having been duly saved, the case is brought to this court by appeal.

The grounds of error insisted upon for a reversal of this judgment are the ruling out of oral testimony as to the alleged modification of the written contract, and, also, the giving of instructions asked by plaintiffs and the refusal of those asked by defendant.

It is claimed by counsel for respondents that the contract sued on is within the statute of frauds.

We do not so regard it. It would appear to be a contract for goods to be manufactured, blending prices and compensation for work, skill, and material so that they cannot be discriminated.

But we do not regard this as material; the contract was in writing, and the rule that oral...