White Oak Coal Co. v. Ed. E. Squier Co.

• Decision Date: 02 March 1920
• Docket Number: No. 15764.,15764.
• Citation: 219 S.W. 693
• Parties: WHITE OAK COAL CO. v. ED. E. SQUIER CO.
• Court: Missouri Court of Appeals

219 S.W. 693

WHITE OAK COAL CO. v. ED. E. SQUIER CO.

No. 15764.

St. Louis Court of Appeals. Missouri.

March 2, 1920.

Rehearing Denied March 30, 1920.

Appeal from St. Louis Circuit Court; Kent K. Koerner, Judge.

"Not to be officially published."

Action by the White Oak Coal Company against the Ed. E. Squier Company. From a judgment for plaintiff, both parties appeal. Reversed and remanded.

Holland, Rutledge & Lashly, of St. Louis, for appellant.

Brownrigg & Mason, of St. Louis, for respondent.

ALLEN, J.

Plaintiff is a corporation engaged in selling the output of certain coal mines in West Virginia, with offices at McDonald, W. Va., and defendant is a corporation engaged in the coal business in the city of St. Louis.

The petition herein is in two counts. The first count alleges that, pursuant to a contract entered into between plaintiff as vendor and the defendant as vendee, plaintiff, on January 20, 1915, consigned to defendant, at its place of business in the city of St. Louis 2 carloads of "large egg New River smokeless coal" (the car numbers and weights being set out), containing respectively 92,000 and 96,700 pounds of said coal, at the agreed price of $2.25 per ton f. o. b. mines at McDonald, W. Va.; that, pursuant to a subsequent agreement of January 28, 1915, plaintiff granted to defendant a reduction of 10 cents per ton on all coal previously shipped to defendant and for which defendant was then indebted to plaintiff; that it was agreed that payment for all shipments would be made by defendant on the 15th of the month following shipment, or the account would bear 6 per cent. interest from that date; and that the said 2 carloads of coal were received and accepted by defendant. Alleging request for payment and defendant's refusal to pay, judgment is prayed on this count in the sum of $202.64, with interest from February 15, 1915.

The second count of the petition alleges that on January 28, 1915, plaintiff and defendant entered into an agreement, subject to the approval of plaintiff, whereby defendant agreed to buy and to accept and pay for, and the plaintiff agreed to sell and deliver, f. o. b. McDonald, W. Va., 100 cars of "New River large egg smokeless coal," at the agreed price of $2.15 per ton for the first 25 carloads, $2.10 per ton for the next 25 carloads, $2 per ton for the remaining 50 carloads, shipments of such coal to begin January 28, 1915, and to be completed by April 1, 1915; that said agreement was "duly confirmed and executed by plaintiff," a memorandum whereof is attached to the petition as Exhibit A; and that subsequent thereto—i. e., on or about February 17, 1915—plaintiff and defendant agreed to a certain modification of the contract, to wit, "that for all coal shipped in pursuance of the said contract on and after February 21, 1915, plaintiff was to receive $2 per ton, f. o. b. McDonald, W. Va." And it is alleged that on January 28, 1915, plaintiff entered upon the execution of the contract, and during all of the time mentioned in the contract was ready, able, and willing to perform the same, and did duly perform all of the conditions thereof on its part; that defendant actually received, accepted, and paid for, as per contract, 4 carloads of coal shipped by plaintiff to defendant under the contract on certain named dates; but that defendant neglected, failed, and refused to perform the contract on its part, in that defendant failed and refused to receive, accept, and pay for any other shipments of coal made in pursuance of the contract.

It is alleged that, in pursuance of the contract, 3 certain carloads of coal (setting forth the car numbers and weights) were consigned to and received and accepted by defendant on certain named dates, for which there is due plaintiff under said contract the sums of $102.99, $102.87, and $96.40, respectively.

It is further alleged that plaintiff consigned to defendant, in pursuance of the contract, 10 other carloads of coal, on certain named dates (setting forth the car numbers and weights), which defendant wrongfully and unlawfully refused to accept, and that after due notice to defendant plaintiff sold the same, and, after the payment of the expenses thereby incurred, applied the net proceeds to the account of defendant; that these 10 cars were sold by plaintiff for the best price obtainable, and that plaintiff received therefor, after deducting necessary expenses, the net sum of $314.24; that the contract price of the 10 carloads of coal thus sold amounted to $957.38; and that, after crediting defend: ant with the net proceeds of the sale thereof, defendant is indebted to plaintiff on account of the same in the sum of $643.15, with interest at the rate of 6 per cent. per annum from March 15, 1915. And it is alleged that, because of defendant's refusal to perform the conditions of the contract on its part, it became necessary for plaintiff "to dispose of the unfinished portion of the said contract at the best price obtainable"; that this price, being the market price of said coal, was $1.60 per ton; and that the remaining 83 carloads of coal covered by the contract were disposed of at the last-named price, certain expenses being incurred in so doing, whereby plaintiff suffered a loss of $1,821.54, which sum is due and payable to plaintiff from defendant with interest from May 15, 1915.

Judgment is accordingly prayed for the total of the various amounts thus alleged to be due plaintiff from defendant, aggregating $2,766.94.

The answer to the first count of the petition admits that on January 20, 1915, plaintiff consigned to defendant the 2 carloads of coal mentioned in the first count, at the agreed price as alleged in the petition, and that the same were received by defendant, and denies generally the other allegations of the first count. Further answering the first count, defendant avers that prior to its agreement to purchase the said 2 carloads of coal plaintiff represented to defendant that the coal was "large egg coal 5×2 bar screened and well prepared," but that in fact the same was smaller in size than the coal so purchased, was badly prepared, and contained a much higher percentage of slate than is contained in well-prepared coal, by reason whereof the coal was of less value than that which plaintiff agreed to purchase from defendant, and that defendant immediately notified plaintiff of the condition and quality of the coal as soon as it was inspected; that in response to said notice plaintiff, through its authorized agent, one Trowbridge, inspected the coal, and that plaintiff's said agent "agreed that it was not up to the standard which defendant had agreed to purchase," and stated that a satisfactory allowance would be made to defendant by the plaintiff; that no agreement has ever been arrived at between plaintiff and defendant as to what such allowance should be, but that in fact the coal was of less value than the contract price by the sum of $75.60; that because of the poor condition and quality of the coal defendant was obliged to make an allowance to its customers on account thereof, and was damaged thereby in the sum of $75.60; that the sum of $126.44 represented the reasonable value' of the coal, which amount defendant tendered to plaintiff prior to the institution of the suit, and which defendant again tendered in its said answer.

For its answer to the second count of the petition defendant admits that plaintiff shipped, and defendant received, accepted, and paid for, 4 carloads of coal, as set up in this count of the petition, and that defendant received the further 3 carloads alleged in this count to have been shipped to and received and accepted by defendant. It is averred, however, that these 3 carloads were purchased by defendant upon plaintiff's representations and agreement that the coal would be "large egg coal 5×2 bar screened and well prepared," and that the same was not of said size, character, and quality; that 2 of said carloads were received by defendant and reconsigned to two of its customers without inspection, and, because of the fact that it was not coal of the size, character, and quality purchased by it, defendant was obliged to make an allowance to its customers of $52.05; and that the value of the coal was not more than $153.21, which sum defendant tendered plaintiff prior to the institution of the suit, and which defendant again tendered in its answer. And it is averred that the third carload was rejected by defendant with notice to plaintiff thereof; that plaintiff then sent its said agent, one Trowbridge, who inspected the coal and found it "not up to the standard of the coal which defendant had agreed to purchase," and who disposed of the coal to another coal company, ordering the purchaser thereof to turn over the purchase price thereof to defendant for plaintiff, and that defendant thus received $77.12 for said carload of coal; that it was agreed between defendant and plaintiff, the latter acting through its agent Trowbridge, that defendant should be paid 10 cents per ton for handling the collection and demurrage charges, amounting to $9.82; and that by reason of the premises defendant is indebted to plaintiff, on account of said carload, in the sum of $67.30, which amount defendant tendered to plaintiff prior to the institution of the suit, and which defendant again tendered in its answer.

The answer to the second count further admits that plaintiff consigned to defendant the 10 carloads of coal alleged to have been consigned to defendant and rejected by it, but it is averred that it was agreed between the parties that the coal comprising the same would be "large egg coal 5×2 bar screened and well prepared"; that the coal comprising said 10 carloads was not of said size, character, and quality; and that, after inspecting it and ascertaining the facts with reference thereto, defendant at once rejected it, as it had the right to do under the terms of its contract, and owes plaint...