Joppa Mattress Co. v. Arkansas Valley Cotton Oil Co.

Kirby, J., (after stating the facts). The statute of frauds has no application to the case as made, since the letters of both parties recognize the contract of sale. Appellant, having been advised of the forwarding of the samples and appellee’s readiness to ship the linters at once, answered that the samples had not arrived, that they had hoped to have the linters shipped by boat, which was cheaper, and requested appellee to hold them for a little while until there was a sufficient rise in the river to bring them down by boat; saying also: “Let us know how long you can hold these; and if the fiver does not rise in time, we will have them sent by rail.” Appellee made no reply to this letter and request, nor at all, until it received appellant’s letter of December 20, asking that the linters be shipped by boat, to which it replied in its letter of the 23d, saying: “We wrote you and expressed samples, and had very little satisfaction from you. About all we had was that you would ship on first boat. Several boats have landed at our wharf, and, with no instructions, we took it for granted that you did not care to handle the linters. Therefore, we sold to parties giving prompt instructions.” The court instructed the jury that if appellant had notice on October 16 of appellee’s readiness to ship the linters at once, and that it had agreed to receive and ship the said linters and pay for them on receipt of such notice, or forfeit the said contract, and if they should find that it delayed the shipping instructions for an unreasonable time, after having been requested to send them, that it would find for the defendant. This instruction was erroneous, because it did not allow the jury to take into consideration appellant’s request for time after such notice that the linters might be delivered by boat, and also submitted to them the question of an agreement on its part to “take the said linters and pay for them on receipt of such notice, or forfeit the said contract,” when there was no testimony whatever of any agreement for such forfeiture under any conditions. Instruction numbered three and also the instruction given by the court, directing the jury to deduct from any damages they might find due the plaintiff because of the failure to deliver the linters in accordance with the terms of the contract any damages defendant suffered by keeping the linters from the time they were to have been delivered until the time of plaintiff’s last demand for their shipment, or, as said in the last part of the court’s instruction, “less expense of keeping and caring for the linters, if any, after date of notice given to plaintiff that linters were ready for shipment,” were erroneous and should not have been given. The appellant was entitled to the delivery of the linters in accordance with the terms of the contract, and the appellee based its right to rescind the contract upon appellant’s unreasonable delay in giving shipping instructions, after it was notified that the linters weré ready for delivery. It had the right to refuse- to grant appellant any forbearance after its notice of its readiness to perform, the contract, but delay on appellant’s part, after requesting, on November 20, further time that the shipment might be made by boat and information as to how long appellee would hold the linters, with the statement that the linters would be shipped by rail, if the river did not rise sufficiently in that time, could not be treated as a breach of the contract on appellant’s part without any notice from appellee until at least a reasonable time thereafter had expired, the delay being regarded as a forbearance merely pursuant to the request. There was no contention by appellee that it held the linters for delivery as requested and incurred damages on that account, but that it rescinded the contract, claiming it had the right to do so for appellant’s failure to take and pay for the linters after notice that they were ready for delivery, and said instructions were erroneous, for, if it had the right to rescind the contract and declare it forfeited on that account as it attempted to do, then it was entitled to no damage whatever for insuring and taking care of the linters since it elected to rescind the sale for appellant’s breach of the contract. Phares v. Jaynes, 94 S. W. (Mo. App.) 585; Sutherland on Damages; § 81. The jury might have found under the instructions that appellant was damaged in a certain sum, and that appellee was damaged on these other items in a sum sufficient to equal the amount of damage sustained by appellant, and have returned the verdict it did on that account. For the errors indicated the judgment is reversed, and the cause remanded for a new trial.