Wilt v. Hammond
| Decision Date | 14 April 1914 |
| Parties | CLINTON WILT, Respondent, v. L. L. HAMMOND and J. R. HAMMOND, partners, composing the firm of HAMMOND BROTHERS, Appellants |
| Court | Missouri Court of Appeals |
Appeal from Greene County Circuit Court.--Hon. Arch A. Johnson Judge.
REVERSED AND REMANDED.
Reversed and remanded.
T. J Gideon & Sons and Mann, Todd & Mann for appellants.
(1) Because this being a suit based in the petition upon a modification of the written contract, and there being an absolute absence of any evidence tending to show a consideration for said modification, plaintiff failed to make out his case and defendant's demurrer should have been sustained. McFarland v. Heim, 127 Mo. 333; Wear v. Schmelzer, 92 Mo.App. 323; Grath v. Mound City Roofing Tile Co., 121 Mo.App. 249; Zerr v Klug, 121 Mo.App. 292; Moomaw v. Emerson, 80 Mo.App. 322; Wilson v. Russler, 91 Mo.App. 281; Merrill v. Central Trust Co., 46 Mo.App. 243. (2) The court erred in admitting plaintiff's exhibits E, F, G and H, those being the statements rendered weekly by the defendants to plaintiff for ice furnished up and including May 10, 1911, for the reason that the written contract is plain and unambiguous in providing for daily payments. This being so, the court will look to the words of the contract and will not look to the interpretation made by the parties. Wetmore v. Crouch, 150 Mo. 682; Meissner v. Standard Ry. Equipment Co., 211 Mo. 112; Bader v. Chicago, M. & L. Co., 134 Mo.App. 144; Holliday v. Lesh, 85 Mo.App. 285; Smith Drug Co. v. Saunders, 70 Mo.App. 221. (3) The court erred in admitting over the objection of the defendants that portion of the affidavit for continuance relating to diligence in attempting to procure the attendance of witnesses. Osborn v. Emery, 51 Mo.App. 408; Thiele v. Citizen's Ry. Co., 140 Mo. 319. (4) The court erred in giving plaintiff's instruction No. 5 on the measure of damages. Because the true measure of damages in this case, if plaintiff was entitled to recover at all, would be the difference between the contract price and the market price at the time of the breach of contract, if there was a breach. Brown v. Trinidad Asphalt Mfg. Co., 210 Mo. 260-273.
Neville & Gorman, W. H. Horine and J. T. White for respondent.
(1) The trial court did not err in overruling defendants' demurrer to the plaintiff's evidence. An executory contract, or one partly executory, may be modified by the parties thereto, and the abandonment of the original terms of the contract is sufficient consideration for the modification. Besides, acting on the contract as modified, is an abandonment of the original contract, and is sufficient consideration. Cannon Weiner Co. v. Boswell, 117 Mo.App. 473; Pottery Co. v. Folckemer, 131 Mo.App. 105; Welch v. Mische, 154 Mo.App. 728; Chambers v. Board of Education, 60 Mo. 370; Mulliken v. Haseltine, 160 Mo.App. 9; Tausig v. Mill & Land Co., 124 Mo.App. 209; Pressed Brick Co. v. Ban, 76 Mo.App. 380; Day v. Insurance Co., 88 Mo. 325; Scriba v. Neely, 130 Mo.App. 258; Sundmacher v. Lloyd, 135 Mo.App. 517. (2) The exhibits E, F, G and H were admitted without objection until after they were read to the jury, and then defendants objected to the form of the receipts, not the substance, objected because they were made in the name of Hammond Brothers' Ice and Cold Storage Company instead of Hammond Brothers, and for no other reason. They were properly admitted, even if they had been a timely objection. They were offered not to show how the parties interpreted the original contract, but to corroborate the plaintiff's testimony that it was charged, and that the parties acted upon it as modified and as pleaded. Cannon Weiner Co. v. Boswell, 117 Mo. 473; Welch v. Mischke, 154 Mo.App. 728. (3) It was not error to permit plaintiff to read a portion of the affidavit for continuance. The only part to which defendants specifically object in their motion for new trial is the sentence, The residence of the witness J. A. Turley is unknown to defendants at this time. Hammond who swore to that, had just testified that Turley was in his employ at the time in Kansas City, and he knew it. It was offered to contradict him on this material issue. State v. Hayes, 78 Mo. 307; Bogie v. Noland, 96 Mo. 85; Bank v. Nichols, 202 Mo. 309. (4) The instruction on the measure of damages, No. 5, was correct. It is now well settled that damage to plaintiff's business caused by the wrong doing of defendant may be recovered, and that damage may be measured by the loss of whatever profits plaintiff can prove with reasonable certainty he would realize but for the wrong done him, whether it is a violation of contract or a tort. Gildersleeve v. Overstolz, 90 Mo.App. 518, 524, 525-528, and 530-531; Shouse v. Neiswanger, 18 Mo.App. 236, 245, 250; Oth v. Railroad, 162 Mo.App. 607, 617; Carter v. Railroad, 128 Mo.App. 57, 64; Cline v. Brock and Knight, 150 Mo.App. 431; Anderson v. Savoy, 118 N.W. 217; More v. Knox, 64 N.Y.S. 1101; Currie Fertilizer Co. v. Kish, 74 S.W. 268, 269-720; Western Union Telegraph Co. v. Delcher, 115 S.W. 624; Talcott v. Freedman, 113 N.W. 13; Sun Mg. Co. v. Egbert, 84 S.W. 667; Pitman v. Boch Queensware Co., 106 S.W. 724; Byson v. McCone, 53 P. 637; 13 Cyc. Law & Pro. 51-52-54; 35 Cyc. Law & Pro. 641, 644.
--This suit is for damages for breach of a written contract, alleged to have been modified by parol, to sell ice to plaintiff during the year 1911. The defendants were manufacturers of ice and the plaintiff was contracting the same under his trade name for sale at retail. The written contract is as follows: The plaintiff alleges that this contract was subsequently modified "so that payment was to be made at the end of each week for ice delieved during such week." Defendants by their answer admits the making of the written contract; deny that same was modified in any way; allege that they were ready and willing to comply with their contract; that they designated Hammond Brothers' (defendants) Ice Plant in the north part of the city as the place of delivery and that the plaintiff refused to comply with said contract. By replication the plaintiff denied that the defendants' ice plant was within the contemplation of the parties as a place to be designated for delivery of ice to plaintiff, as it was too inconvenient and not so designated in good faith and the defendants kept ice at another place in the south part of the city more convenient to plaintiff and could readily have delivered it there. On these issues the case went to a jury, resulting in a verdict for plaintiff for $ 1687.40.
The most important point here is as to there being any valid modification of the written contract. While this contract is spoken of as of date April 3, 1911, when it was drawn up and signed by plaintiff, the evidence is that it was not signed by defendants until two or three weeks later and in the meantime some dispute arose as to delivering ice thereunder and plaintiff had his attorneys write defendants a letter demanding a compliance with their contract. As showing a modification of the contract, plaintiff testified that in a day or two after such letter was mailed that Hammond came over to his office and they talked the matter over thoroughly and he (Hammond) said he was in bad with Bradshaw, as he had promised Bradshaw the exclusive south side territory for selling ice and that they went over everything and "agreed to go ahead with the contract and pay weekly, as we always had." Plaintiff further testified that defendants then designated the plant in the south part of town as the place to get the ice, as it was more convenient for both parties than the north side plant. There was also evidence that during April and the first part of May, the plaintiff did pay weekly on statements furnished by defendants covering each past week. There were four such statements, the amounts increasing from $ 9.72 to $ 37.80. Plaintiff also testified that defendants' bookkeeper when he was drawing up the contract providing for daily payments, expressed his opinion that defendants would not want or demand daily payments; but it is not claimed that defendants even knew of this. The defendants' evidence on this point is a denial of any subsequent talk or promise as to payment being made weekly instead of daily, and that the defendants had plenty of ice in April and the first part of May, 1911, and were selling to everybody and, as plaintiff was an old customer, they paid no attention to the sales, amounts of ice he was getting or the manner of payment. All parties agree that the real ice season for retail trade opens up with warm weather in May or June, and plaintiff claims that he could during such season have handled fifteen to twenty tons per day, making his daily bills much larger than his previous weekly bills. On May 9th, the defendants referring to the previous letter of plaintiff's attorneys demanding a compliance with the contract to deliver ice to plaintiff, wrote plaintiff as follows: ...
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