Indianapolis Abattoir Co. v. Penn Beef Co.

Nichols, P. J. Action by appellee against appellant to recover damages in the total sum of $2,850, alleged to have been sustained by appellee by reason of the alleged breach by appellant of certain contracts to sell and deliver to appellee four cars of steers at the respective dates alleged in the several paragraphs of complaint. There were three paragraphs of the complaint, the first founded upon an alleged contract entered into April 6, 1920, by and between appellee and appellant by appellant’s agents, O’Neill and Payne, at Philadelphia, Pennsylvania, by the terms of which appellant sold to appellee one car of steers weighing between 700 and 800 pounds each at eighteen and one-half cents per pound to be shipped from Indianapolis, to appellee at Philadelphia, Pennsylvania, on Saturday, April 10, 1920. The sale was confirmed in writing by appellant’s agents, O’Neill and Payne, at the instance and request of appellant. It was averred that appellee had complied with all the conditions of the alleged contract by it to be performed, and that it was ready and willing to receive and pay for said car of steers on the day for the delivery thereof, but that appellant failed and refused to ship such car so sold at the time for the shipment thereof and notified appellee that it would not ship *147 the same, all to appellee’s damage. The alleged market price of the steers of the weights specified in the alleged contract at the time and place appellant agreed to deliver the same was twenty-three cents per pound, and the average weight of the carload of such steers was alleged to be 22,100 pounds. There was a demand for judgment on this paragraph of complaint for $1,000 and interest. The second and third paragraphs respectively were substantially the same as the first except as to the dates, the weights, the price and the amount of the demand. Appellant filed its demurrer to each of these para-, graphs of complaint, which was overruled, to which appellant excepted and then filed its answer, the first a general denial to each paragraph, the second, an affirmative defense to each the first and the second paragraphs based upon the manner of doing business by appellee and appellant prior to April 6, 1920, and the custom of transporting products sold by appellant to appellee by rail from Indianapolis to Philadelphia, and averring that the understanding between appellee and appellant was that the several cars mentioned in the first and second paragraphs would be shipped by rail from Indianapolis to Philadelphia; that there was no other means of transportation considered by them; and that, for a period of seven days immediately following April 10, 1920, there was a switchmen’s strike in effect on the lines of all railroads within and proceeding out of Indianapolis, that the carriers were unable to employ switchmen to operate cars on their respective railroads, and that, for that reason, they declared an embargo, and refused to receive from appellant the several cars of steers mentioned in the first and second paragraphs of complaint for shipment to appellee; that such strike and the embargo of the carriers was not at the instance or by direction of appellant, but in spite of it; that *148 such strike was not within the contemplation of appellee and appellant at the time of the agreement between them to ship said several cars of steers, but contrary to their understanding that said cars would be shipped by common carrier in the usual course of business as theretofore; that, by reason of such strike and embargo, appellant was unable to deliver said cars on the dates when cars were agreed to be delivered or within seven days thereafter. By reason of such condition, appellant avers that it was excused and discharged from the performance of the contract. There was a demurrer to the second paragraph of answer which was sustained,- to which ruling of the court appellant excepted. There was a trial by the court with special findings of fact and conclusions of law in favor of appellee, to which conclusions appellant excepted, and upon which judgment was rendered. The errors assigned in this court are: (1) The action of the court in overruling the several demurrers to each of the paragraphs of complaint; (2) in sustaining appellee’s demurrer to the second paragraph of answer; (3) in'stating its conclusion of law based upon its special findings of fact as to each paragraph of the complaint. Appellant contends that its demurrer to the respective paragraphs of complaint should have been sustained for the-reason that the contract sued on and set out in each of the paragraphs did not state the price with certainty, that it did not state where the property was to be delivered, and that, therefore, such contract, being for goods and merchandise for more than $50, was insufficient under the Statute of Frauds, §8049 Burns 1926, §7469 Burns 1914, §4910 R. S. 1881. But these objections to the contracts first appear in appellant’s Points and Authorities. In the memorandum to appellant’s demurrer to each of the paragraphs of complaint, it was *149 stated that the contracts were each unenforceable because: (1) “No part of the property was delivered, nor was anything given in earnest to bind the bargain or in part payment, nor was any sufficient memorandum in writing of the bargain made and signed by the party to be charged therefor, or by any person by him thereunto lawfully authorized”; (2) that none of the contracts “recited the essential terms of the alleged contract in such a way as to make unnecessary the admission of parol evidence to explain such notes or memorandum”; (3) that the contract, Exhibit C, “is insufficient as not alleging all of the essential terms of the alleged contract and is incomprehensible unless explained by parol evidence.” That such indefinite memorandum is insufficient to present any question upon the demurrer has been decided both by the Supreme Court and this court. In State, ex rel. v. Bartholomew (1911), 176 Ind. 182, Ann. Cas. 1914B 91, it was held that the defects of the complaint not specifically stated in the memorandum which is a part of the demurrer are waived by the demurring party, and it cannot thereafter question the sufficiency of the complaint for any defect not so specified. It was there held that the reasons why the complaint is insufficient should be stated in plain and concise language. In Pittsburgh, etc., R. Co. v. Baughn (1919), 70 Ind. App. 333, specific objections to the complaint as reasons why the demurrer should have been sustained thereto were' pointed out by appellant in its “Points and Authorities,” but none of these objections was stated in the memorandum which was filed with the demurrer, the memorandum filed therewith being that: “No facts are alleged to show or showing the defendant guilty of actionable negligence,” and it was held that such a memorandum was too general and indefinite to present any question, the court saying that it knew *150 of no reason why a party filing a demurrer to a pleading should not be as specific in pointing out objections to the trial court as on appeal. In Lake Erie, etc., R. Co. v. Howarth (1919), 73 Ind. App. 454, the complaint was defective because of failure to aver knowledge on the part of appellant and want of knowledge on the part of appellee, but it was held by the court that such defect was waived by appellant for failure to specifically point out such defect in its memorandum filed with its demurrer to the complaint. The memorandum to the demurrer stated that the complaint did not state facts sufficient to show that appellant owed appellee any duty, or that it committed a breach of any duty which it owed appellee, or that appellant was guilty of any act of negligence, or that appellee was free from contributory negligence, but that the facts stated affirmatively showed that appellee was guilty of contributory negligence, that it did not state facts to show that the alleged negligence of appellant was the proximate cause of appellee’s injuries, but that the facts stated showed that the accident in question resulted proximately from either the negligence of appellee or from the combined negligence of appellee and appellant. The court, speaking with reference to such memorandum, says: “It thus appears that the objections to the complaint are, in the main, stated only in general terms, and that no specific reference is made to the absence of allegations with reference to knowledge on the part of appellant, and want of knowledge on the part of appellee, of the defective condition of said electric bell. If a party wishes to have his objections to the sufficiency of a pleading considered, he must do more than refer to the same in general terms in the memorandum filed with his demurrer thereto.” In harmony with these decisions, we hold that the memorandum to the de *151 murrer in this case is too indefinite to present any question and the demurrer to the complaint was properly overruled. The court did not err in sustaining appellee's demurrer to the second paragraph of answer which as aforesaid avers, as an excuse for failing to ship the steers involved, that there was a strike upon the railroad which caused them to declare an embargo and refuse to accept the stock for shipment. It appears by each of the contracts in controversy that appellant undertook, without any limitation, exception or condition, to deliver the steers sold to the appellee at Philadelphia, Pennsylvania, and appellant cannot be relieved from the performance of his contract except by the act of God or the public enemy or express law. The strike of employees upon a railroad is included in none of these exceptions. The rule is thus stated in 23 R. C. L. 1430, § 254: "Where the contract of sale is executory and relates to unidentified property so that any property of the kind and quality stipulated for may be delivered, the seller assumes an absolute liability to make delivery and is not excused from nonperformance by the happening of unforeseen events and accidental causes preventing his filling the contract in the manner he may have contemplated. This is in pursuance of the general rule that where a person absolutely contracts to do a certain thing not impossible or unlawful at the time, he will not be excused from the obligations of the contract unless the performance is made unlawful or is prevented by the other party." Authorities to the same effect are: Rowe v. Town of Peabody (1910), 207 Mass. 226, 93 N. E. 604 ; Cluley-Miller Co. v. Freund, etc., Co. (1909), 138 Mo. App. 274, 120 S. W. 658 ; Roseberry v. American Ben. Assn. (1909), 142 Mo. App. 552, 121 S. W. 785 ; Marsh v. Johnston (1909), 196 N. Y. 511, 89 N. E. 1104 ; Richardso *152 n Co. v. Wreschner (1915), 156 N. Y. Supp. 1054; Pilsen Coal Co. v. West Chicago Park Comrs. (1921), 221 Ill. App. 162, 176 ; Standard Scale, etc., Co. v. Baltimore, etc., Co. (1920), 136 Md. 278, 110 Atl. 486, 9 A. L. R. 1502; Irwin v. Kelly (1912), 176 Ill. App. 178 ; United States v. Gleason (1899), 175 U. S. 588, 20 Sup. Ct. 228, 44 L. Ed. 284; Neblett v. McGraw (1907), 47 Tex. Civ. App. 207, 103 S. W. 1113 . In Irwin v. Kelly, supra, the action was for damages for failure to deliver certain coal as they had contracted to do, for the reason that there was a shortage of cars. It was there held that such shortage was no defense in such an action, the contingency not having been provided against in the contract. In the Gleason case, supra, the rule was thus stated: “If a party by his contract charges himself with an obligation possible to be performed, he.must make it good, unless his performance is rendered impossible by an act of God, the law, or the other party. Difficulties, even if unforeseen, and however great, will not excuse him. If parties have made no provision for a dispensation, the rule of law gives none—nor, in such circumstances, can equity interpose.” In the Neblett case, supra, it was held that where a building contract provided that the contractor should be liable for delay in performance, he was chargeable with delay while waiting for brick from a brick factory with which he had contracted, though the delay was due to a strike among the servants of the brick factory. In the instant case, there is no provision in the contract the steers were to be shipped by railroad nor is there any averment in the answer that at any time after the strike ended, which is alleged to have lasted seven days, did appellant make any effort whatever to fulfill its contract and in which it was then in default. Under such circumstances, and *153 in the absence of any provisions in the contract protecting appellant against such contingencies, we must hold that the court did not err in sustaining appellee’s demurrer to the second paragraph of answer. Appellee earnestly insists that there was no proper exception to the conclusion of law, the same having been indorsed upon the same paper as the conclusion at the end thereof and beneath the judge's signature. Such exception so indorsed is as follows: "June 22, 1923, the defendant in the above entitled cause now on the announcement of the court of the above special finding of facts and conclusion of law by the court, excepts to said conclusion of law. Pickens, Cox, Conder Bain, Attorneys for Defendant." Appellee contends that such an exception so taken is not part of the record. Appellee also contends that the case of King v. Downey (1900), 24 Ind. App. 262, is not the law, and that it should be overruled; but, as we view the situation, we are not, for the purposes of this case, concerned with the case of King v. Downey, supra, for, in addition to the exception to the conclusion of law indorsed upon the same as above set out, the record of this case shows as follows: "Come now the parties and the court now files its findings of facts and conclusion of law thereon, and to which conclusion of law the defendant excepts, as follows"; then follows of record the special findings of facts and conclusion of law. The fact that this last mentioned exception of record preceded the conclusion of law in the same entry instead of following it, as it seems to us, can make no difference. It is sufficient if such exception is of record in the same entry in which the special findings and conclusion are found. As is said in Elliott's Appellate Procedure, § 793: "The exception is shown to be timely if it appears in the same entry as that in which the special *154 finding is contained." We hold that the appellant substantially complied with the law in taking its exception to the conclusion of law. Appellant challenges the' conclusion for the reason that the special finding failed to find the market value of the goods at Indianapolis on the day fixed in the contract for delivery, instead of at Philadelphia, Pennsylvania. We hold, however, that, under the circumstances of this case, the place of delivery was Philadelphia. It is true that, in the absence of the designation of the place of the delivery in the contract, such place is generally that of the place where the goods were at the time of the sale, and that this will usually be the place of business of the seller. The place of the steers at the time of the sale is not named in the contract or the findings, nor is the residence of appellant named other than as it .may be inferred from the name of appellant. On the other hand, the place of residence of appellant’s agents, O’Neill and Payne, was in Philadelphia, Pennsylvania, and the contract of sale was finally confirmed and consummated there through such agency, with appellee in said city. Under such circumstances, it seems clear to us that the contracts of sale were Pennsylvania contracts. In Hansman v. Nye (1878), 62 Ind. 485, 30 Am. Rep. 199, it was held that where an agent of a person doing business in another state contracts with a merchant in this state for the sale of a bill of goods, that such a contract is an Indiana contract. By the same reasoning, we hold that where appellant, with a residence foreign to the state of Pennsylvania, enters into a contract through its agent in the state of Pennsylvania with a merchant in such last named state, such a contract is a Pennsylvania contract. To the same effect see 13 C. J. 580, where the rule controlling is thus *155 stated: “A contract is as a rule considered as entered into at the place where the offer is accepted or where the last act necessary to complete it is performed.” In Barr v. Myers (1842), 3 Watts & Sergeant (Pa.) 295, 299, the court held that: “If by the contract neither time nor place of performance is stipulated, but they are deliverable on demand, then the general rule is, that the articles sold are to be delivered at the place where they are at the time of the sale—such as the store of the merchant, the shop of the manufacturer or mechanic, and the farm or granary of the farmer, at which they are deposited or kept. And the reason is, that the party to receive is to be the actor, by going to demand the articles; and till then the other party is not in default in omitting to tender them. But the reverse is the case, where though the place is not fixed, the time on or before which the vendor binds himself to deliver the articles is stipulated; for there the party to deliver must become the first actor, in order to fulfil his contract. He must seek out the vendee, at his residence, and there tender, the articles, to save himself from default.” Authorities are cited to sustain the rule. It is averred in each paragraph of the complaint that appellee had complied with all the conditions of the contract by it to be performed and that " it was ready and willing to receive and pay for such car of steers on the basis fixed for delivery thereof. " (Our italics.) The Supreme Court of this state has repeatedly decided that such averment and the proof thereof, in this class of cases, is necessary in order that there may be a recovery. Magic Packing Co. v. Stone-Ordean, etc., Co. (1902), 158 Ind. 538, 542 ; Beard v. Sloan (1868), 30 Ind. 279 ; Bailey v. Ricketts (1853), 4 Ind. 488 ; Smith v. Smith (1846), 8 Blackf. 208 ; Vankirk v. Talbot (1837), 4 Blackf. 367 . If such averment and the *156 proof thereof was material, then it was a material part of the finding, but it does not appear in the finding. In the absence of such a finding, the conclusion of law cannot be sustained. For this error, the judgment is reversed, with instructions to the trial court to grant a new trial.