Wood v. Saylor Tie & Timber Co.
| Decision Date | 06 February 1934 |
| Docket Number | No. 22647.,22647. |
| Citation | 67 S.W.2d 826 |
| Court | Missouri Court of Appeals |
| Parties | WOOD et al. v. SAYLOR TIE & TIMBER CO. |
Appeal from Circuit Court, Audrain County; Wm. C. Hughes, Judge.
"Not to be published in State Reports."
Action by W. D. Wood and another, copartners doing business as W. D. Wood & Son, against the Saylor Tie & Timber Company. Judgment for plaintiffs, and defendant appeals.
Affirmed.
A. C. Whitson, of Mexico, Mo., and Frank B. Coleman, of St. Louis, for appellant.
Fry, Hollingsworth & Francis, of Mexico, Mo., for respondents.
SUTTON, Commissioner.
This action was instituted in the circuit court of Audrain county, to recover damages for the breach of a contract for the purchase and sale of railroad cross-ties.
Plaintiffs, in their petition, allege: That on September 6, 1930, and prior thereto, they were copartners engaged in the business of producing and selling railroad cross-ties, and that defendant now is and has been since prior to September 6, 1930, a corporation engaged in the purchase and sale of railroad cross-ties; that on September 6, 1930, plaintiffs entered into a contract with the defendant in writing whereby the defendant agreed to purchase of and from plaintiffs, and plaintiffs agreed to sell to defendant, all white oak cross-ties produced by plaintiffs in the years 1930 and 1931, estimated at 10,000 in number, subject to Chicago & Alton Railroad Company inspection at railway stations where said railroad company generally accepted delivery of cross-ties at and for the following prices: All ties graded as rejects at 35 cents per tie; all ties graded as No. 1 at 60 cents per tie; all ties graded as No. 2 at 70 cents per tie; all ties graded as No. 3 at 80 cents per tie; all ties graded as No. 4 at 90 cents per tie; all ties graded as No. 5 at $1 per tie. That upon the execution of said contract plaintiffs began to deliver, and from the date of the execution of said contract up to some time in May, 1931, did deliver, to defendant, in accordance with the terms and provisions of said contract, approximately 3,000 ties, which were accepted and paid for by defendant, and that, although plaintiffs were then ready, able, and willing to furnish and deliver to defendant the remaining 7,000 ties at the points and within the time in said contract provided, nevertheless the defendant, in direct violation of the terms and provisions of said contract, did in May, 1931, in Audrain county, Mo., notify plaintiffs that it would neither receive nor pay for any more ties under said contract, and that it was then and there canceling said contract, and that defendant thereafter wrongfully failed and refused to comply with the terms and provisions of said contract, to plaintiffs' damage in the sum of $2,000.
Upon the filing of the petition, summons was issued directed to the sheriff of the city of St. Louis. The sheriff's return shows that the summons was served in the city of St. Louis by delivering a copy of the writ and petition to a person in charge of defendant's usual business office in said city; the president or other chief officer of said defendant not being found in said city.
At the return term of the summons, defendant filed its plea in abatement and answer.
The plea in abatement questions the jurisdiction of the court on the grounds (1) that the cause of action in suit did not accrue in Audrain county; and (2) that no summons was issued to the sheriff of Audrain county and a return of non est made on such summons before the issuance of the summons to the sheriff of the city of St. Louis.
The answer denies generally the allegations of the petition, and alleges further that the contract sued on is void for want of mutuality; that in 1930 the defendant had an order for a large amount of railroad ties from the Chicago & Alton Railroad Company, to be delivered to the Chicago & Alton Railroad Company, subject to its inspection at its stations along said railroad, said order calling for delivery of said ties during the years 1930 and 1931; that on January 1, 1931, the Chicago & Alton Railroad Company withdrew its order for ties and refused further to accept ties delivered by the defendant or others for it at its stations along its line of railroad; that on said date plaintiffs had no contract with the defendant by which plaintiffs were obligated to deliver to defendant any certain number of white oak ties, and that the contract sued on was not binding on the plaintiffs and was void on account of the lack of mutuality or obligations between plaintiffs and the defendant; that during the months of January, 1931, up to May, 1931, plaintiffs had a large number of railroad ties on hand which they could and were able to deliver to the Chicago & Alton Railroad Company to inspect, and that in May, 1931, in consideration of the defendant procuring the Chicago & Alton Railroad Company to inspect and receive the ties so owned and controlled by the plaintiffs and on hand, it was agreed between plaintiffs and defendant that any right or claim plaintiffs might have on the contract sued on would be settled and satisfied and said contract canceled and the defendant relieved from any further liability thereon to the plaintiffs on the payment by defendant of the purchase price of said ties which plaintiffs then had on hand at the rates set out in said contract; that the defendant in May, 1931, procured said railroad company to take up and receive all railroad ties that plaintiffs had on hand and the defendant paid plaintiffs therefor, and thereby said contract was released, canceled, and satisfied; that the contract sued on was not to be performed within one year from the making thereof, and is void under the statute of frauds because not all the terms and conditions thereof were in writing and signed by the parties.
The reply is a general denial.
The cause was tried to the court without a jury. There was a judgment in favor of plaintiffs for $820, and defendant appeals.
Plaintiffs at the time of the execution of the contract in suit resided in Audrain county, and had been in the business of making and selling railroad cross-ties for a period of about fifteen years. They had sold ties to the defendant company on several occasions prior to the execution of the contract in suit here. On September 6, 1930, H. F. Henning, a representative of the defendant, and plaintiff W. D. Wood met in Mexico, in Audrain county, and, after negotiations at some length, agreed upon and executed the contract in suit, as follows:
After the execution of this contract, plaintiffs produced and delivered to defendant about 4,500 ties which were accepted and paid for at the rates specified in the contract. The ties so delivered were made from timber purchased in Audrain, Monroe, and Randolph counties. The manner of producing and delivering the ties under this contract was the same as that pursued under former contracts plaintiffs had with the defendant.
On May 23 or 24, 1931, plaintiffs had a conversation with H. N. Saylor, Jr., president of the defendant company, at the Hoxsey Hotel, in Mexico. In that conversation, according to the testimony of the plaintiffs, Mr. Saylor informed plaintiffs that the Chicago & Alton Railroad Company had canceled its contract and was not taking any more ties, and directed plaintiffs not to deliver any more ties, saying that the contract with plaintiffs was canceled, but that he would take up and pay for what ties plaintiffs had on hand. At that time there had been about 4,000 ties delivered and accepted under the...
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Weil Clothing Co. v. National Garment Co.
...the evidence as to Count One should have been sustained for lack of a sufficient memorandum to satisfy the statute. Wood v. Saylor Tie & Timber Co., Mo.App., 67 S.W.2d 826; Darnell v. Lafferty, 113 Mo. App. 282, 88 S.W. 784; Leesley Bros. v. A. Rebori Fruit Co., 162 Mo.App. 195, 144 S.W. 13......
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State ex rel. Miller's Mut. Ins. Ass'n of Illinois v. Sanders
...Fibers, Inc., 310 F.Supp. 491 (D.S.C.1970); State ex rel. Cummins v. Eversole, 332 S.W.2d 53 (Mo.App.1960); and Wood v. Saylor Tie & Timber Co., 67 S.W.2d 826 (Mo.App.1934). They are not comparable and are not persuasive in this case. Gardner dealt with a claim for anticipatory breach of a ......