Metropolitan Street Railway Co. v. Broderick & Bascom Rope Co.

ELLISON, J. This action was instituted to recover damages for breach of contract of guaranty. The judgment in the trial court was for the defendant. Plaintiff is a street railway company in Kansas City, now operated by electricity, but which, at the time of the contract in question, was operated as a cable railway system, that is to say, the cars were drawn by an endless steel cable or rope running in conduits sunk in [643] the streets. Defendant was a manufacturer of such cables and frequently sold them to plaintiff prior to the sale in question. On the 29th of April, 1896, plaintiff purchased of defendant, by written contract, two cables, one for its east fifth street line and the other for its west fifth street line; the latter, being the one in question, was to be 31,600 feet long, at the price of nine cents per foot, with a guaranty of twelve months. After stating the guaranty and terms of payment, the contract continued in these words: “In case either or both of these ropes foil to run the life of their guaranty, then we agree to refund you promptly any money which may be due on account of such failure, same to be figured proportionately between actual time run and time guaranteed.” Plaintiff claims that the cable for the west line could only be kept in service 122 days out of the twelve months of the guaranty, when on account of its poor quality, it became unfit for further service and plaintiff was compelled to take it out and put it aside as worthless for the purpose purchased. The defendant admitted the contract and plaintiff admitted the cable was furnished and put into service, but coupled that admission with the assertion that it failed to fill the requirement of the contract and its use had to be discontinued. The defense, as stated by defendant, was: 1. That this cable was manufactured and guaranteed specifically for this west fifth street line, upon the understanding that it would be put into ser-vice about the time it was delivered and properly used therein until worn out. 2. That the plaintiff failed and refused to put the cable into service for an unreasonable length of time under all the circumstances and considering the previous course of dealing between the parties, by reason whereof the cable, remaining wound on the" reel, was damaged. 3. That while the rope was in service and prior to the change of the road to electric power, the [644] plaintiff neglected to maintain the machinery conduit and other appliances through which the cable ran in a reasonable manner in as good condition as when the cable was sold. 4. That plaintiff failed to operate the cable road with proper care and regard for the life of the cable for twelve months after it was put into service. 5. That for the purpose of compelling the defendant to refund a part of the purchase price of the rope plaintiff failed to put the cable into service until after it had determined to change the road to electric power, and then abused the cable and removed it just prior to the change to electricity. The record in the case is so voluminous that it would be too great a task to attempt to discuss it in detail. We will state our view of the law which should govern the case and then apply it to conduct of the trial. The contract being in writing, and there being-no pretense of fraud, accident or mistake, is conclusively presumed to contain the entire agreement of the parties. [Boggs v. Laundry Co., 171 Mo. 282, 287; Dexter v. MacDonald, 196 Mo. 373, 391; Jackson v. Ry. Co., 54 Mo. App. 636.] There was evidence tending to show that a cable would weaken or deteriorate if kept coiled and out of use for any great length of time, and that this cable was. not put into service for near two years after being received. Where the contract is silent as to the time the article contracted for is to be put into service, a reasonable time will be implied, as much so as if written-therein, and it is improper to admit evidence of a specific-time being verbally agreed upon or intended. [Mfg. Co. v. Jaeger, 81 Mo. App. 239; Williams v. Ry. Co., 85 Mo. App. 103.] The contract in this case did not provide for-any time when the cable was to be put in service, and it was therefore improper to admit evidence tending to show a prior agreement between the parties that the cable was to be put into service by plaintiff at a specific-time after being received. Evidence was properly al [645] lowed to show how long plaintiff kept it in coil before putting it into service, and the only further inquiry on that head should have been directed to the question whether that was a reasonable time; and if not a reasonable time, whether defendant had waived the delay. Another branch of the case falls within the same rule of law. There was evidence tending to show that plaintiff allowed the appliances' and places through which, and over which, the cable was operated, to become out of repair and unfit to handle it, and- for that reason it wore out before the time limited in the guaranty. The contract does not specify the conditions under which the cable should be used. It may be the conditions and mode of operation when the sale was made were good, but the contract does not provide that those conditions shall be maintained. In the absence of such provision, it will be implied that reasonable and usual conditions and mode of operation will be followed (Haynes v. Bapt. Church, 88 Mo. 285, 292; Crenshaw v. Looker, 185 Mo. 375, 392; Mfg. Co. v. Heinz, 120 Mo. App. 465, 475, 476), and defendant has not the right to have the jury hear evidence that the same conditions were agreed upon which existed when the contract was made, or to have them instructed absolutely that the same conditions should be followed. Yet that was the direction given in instructions 3 and 4 for defendant. Instruction No. 13 given for defendant, was improper. It virtually abandons the written contract and submits the case to the jury on the theory of a course of dealing theretofore existing between the parties. A prior course of dealing may be the moving cause for putting a new contract in writing. It frequently happens that prior dealings are unsatisfactory. The instruction was otherwise improper in- that it called' specific attention, in way of argument, as to putting other cables into service If it be true that to permit a cable to remain in coil, without use, for any unreasonable period of time, [646] injuries it so as to impair its strength and wearing capacity, and that plaintiff kept it out of ‘use for such length of time as weakened it so that it could not last the length of the guaranty, and that defendant did not waive such delay, then plaintiff should fail. And if it he true that plaintiff did not operate the cable in a manner, or with appliances, reasonably suitable for such purpose, and from that cause it wore out before the expiration of the guaranty, the case should fail for that reason. The defendant was entitled to have a fair and reasonable test made of its cable before being charged with a breach of guaranty. And if it be true that the cable was not worn so as to be unfit (reasonably) for further use when plaintiff took it out, then, also, it should not recover. And, of course, if any evidence should be had that plaintiff wilfully kept the cable out of use until a short time before the change of the system into electricity, and then made unreasonable use of it so as to impair it, in order to afford an excuse to take it out and go upon defendant on the guaranty, such fraudulent design and acts would prevent recovery. The judgment will be reversed and the cause remanded. All concur.