Eaton v. J. R. Crowe Coal & Mining Co.

BROADDUS, P. J. The plaintiff’s action is for damages for the failure of defendant to deliver a certain number of car loads of coal as provided by its contract. The plaintiff was a resident and doing business at Springfield, Missouri, and the defendant is a Missouri corporation with head-quarters at Kansas City, Missouri. [33] The contract was made .by correspondence through the mails in the following manner. The plaintiff made his order for coal through defendant’s agent, C. J. Cease, which reads as follows: “Order No. 233 Date, Sept. 11, 1902. M. J. R. Crowe C. and M. Co. Ship to Henry Eaton At Springfield, Mo. How Ship, Frisco. When As ordered during season not to exceed one car per day. Terms-- 50 cars Weir Cy Lump at $1.75 F. O'. B. mines. C. J. Cease. Henry Eaton. ’ ’ The order was accepted by the defendant by letter as follows: “Kansas City, Mo., Sept. 13th, 1902. “Mr. Henry Eaton, Springfield, Mo. “Dear Sir: — We are in receipt of your orders Nos. 233 and 231, given our Mr. Cease, for fifty cars of Weir City Lump and two cars of Weir City Nut, for which we are greatly obliged. We wil see to it that good coal is furnished you and prompt shipment made of it.” In the left-hand corner of the letter-head appears the following: “Sales based upon St. L. & S. F. R. R. Co’s Weights. Quotations for present only, unless otherwise specified. Orders binding only when accepted in writing. All orders and contracts subject to car supply, strikes, accident and causes beyond our control. We do not guarantee Freight Rates.” The defendant shipped five cars of coal and then ceased further shipments. Defendant’s evidence tends to show that the rear son for its failure to make further deliveries of coal to the St. Louis and San Francisco Railroad, the carrier designated in the contract, was that the company [34] appropriated or confiscated all of its production of coal and refused to carry any for plaintiff;. The excuse given by the railroad company was that it also had a contract with defendant to furnish it with coal, and, therefore, it appropriated it for its own use instead of delivering any part to plaintiff. The evidence of defendant, however, tends to show that one reason for the failure to comply with the contract was that it did not have a sufficient production of coal to fill its contract to furnish coal with plaintiff, the railroad company and others. Plaintiff made numerous demands on defendant to furnish him coal under his contract, but the letters of defendant in answer to these demands almost invariably are to the effect that the railroad company was appropriating all the coal defendant had on hand to apply on its contract. A letter of W. C. Smith, general agent of the railroad company, to plaintiff gives as a reason for the failure of defendant to deliver coal to plaintiff that the coal company had contracted to furnish his company with a certain number of cars of coal daily, and before permitting them to bill coal commercially it was required to fill the orders of the railroad company. Buchanan, one of defendant’s officers, testified that, for twenty or thirty days he could not get oars to ship coal to plaintiff,' but that at other times it was the inability of the defendant to supply the coal and not the inability to obtain cars for shipment. The plaintiff had contracted with various persons to supply them with coal and by reason of the failure to get coal from the defendant he was compelled to go on the market and buy coal for which he paid in excess of' the price his contract with defendant called for. There was evidence tending to show that the plaintiff had knowledge of the custom of trade in matters of transportation which appeared in said letter-head, and that plaintiff-had transacted similar business with the defendant prior to the date of the order in ques [35] tion by means of orders of tbe character in question with tbe same conditions attached. Tbe cause was tried by tbe court without tbe intervention of a jury. Tbe finding and judgment were for tbe defendant from which tbe plaintiff appealed. Tbe plaintiff asked nine declarations of law, all of which tbe court refused, except one, which it is not necessary to consider, and gave various declarations asked by tbe defendant. The declarations given for defendant indicate that tbe court’s view of tbe issues was that tbe contract in suit was a conditional one, that is to say, that tbe defendant was excused for non-delivery of tbe coal on tbe ground that it was prevented from so doing by causes beyond its control. The contention of plaintiff is that the contract was unconditional, that the writing in the letter-bead of the letter accepting plaintiff’s order constituted no part of the contract. It will be seen that there is in said writing the following all orders aand contracts subject to car supply, strikes, accident and causes beyond our control.” Taking into consideration the trade custom in such cases, and the prior dealings between the parties, we think it should be held that plaintiff contracted with the understanding that tbe order for coal was accepted upon the condition that the order was subject to car supply and causes beyond the defendant’s control. The contention of appellant is that a custom is a rule of trade and not a rule of tbe individual. Generally speaking, that is true, but a person entering into a contract may be bound by the usage of a particular business when be is acquainted with it. [Martin v. The Ashland Milling Co., 49 Mo. App. 23; Walsh v. Transportation Co., 52 Mo. 434; Brown v. Strimple, 21 Mo. App. 338; Lawson on Usages and Customs, sec. 51.] And it is contended by appellant that tbe evidence is conclusive that tbe failure of defendant to supply coal was because defendant’s contracts to furnish a [36] quanity of coal to plaintiff and others was in excess of the production, therefore, the conditions of' the clause in the letter-head were not material. This contention is well founded. The uncontradicted evidence shows that defendant’s reason for not shipping plaintiff coal was not because the railroad would not ship coal to him, but because the supply was applied to its contract with the railroad. The following finding of the court was not, supported even by the evidence of defendant. “The court declares the law to be that defendant’s failure to deliver coal to plaintiff as provided by the order in question, was due solely to the fact of shortage in cars, and not to a shortage in coal.” Plow the court could have come to such a conclusion, in the face of the most positive evidence we are at a loss to understand. There being no evidence of the number of tons of coal defendant failed to" deliver, there was no basis upon which the court could estimate plaintiff’s damages, if any, and the court so declared. But as it was shown that defendant had committed a breach of the contract, he was entitled to a judgment for nominal damages. Ordinarily, in such cases, if the plaintiff fails to show that he has suffered no damages by reason of the defendant’s failure to comply with his contract perhaps it would not justify a reversal. But this case is different. There can be no doubt but what the evidence did show that plaintiff was greatly damaged by defendant’s failure to furnish coal contracted for, but he failed to show the extent or the amount of such damage. Therefore, in order that justice may be done, we will give the plaintiff the benefit of his right to recover on the proof some damages, however small, and reverse the cause so that in another trial he may present the necessary proof to sustain his case, and thus prevent a slip of justice. In so doing, w.e are also persuaded that we are within the letter of the law. All concur.