Interior Linseed Co. v. Becker-Moore Paint Co.

NORTONI, J. This is a suit for damages accrued to plaintiff on account of a breach of contract of sale. Plaintiff recovered and defendant prosecutes the appeal. The material facts and the conclusions of law thereon are clearly stated and set forth in an opinion of the trial judge, Hon. Rhodes E. Cave, filed at the time of giving judgment in the case in the circuit court. We copy this statement of facts and opinion as accurately reflecting our views on the questions here. Such statement and opinion are as follows: “There is no controversy as to the facts in this case whatever, and they show that in October, 1911, the defendant by telephone ordered of plaintiff 320 barrels of linseed oil; that on the same day plaintiff confirmed this verbal sale by letter .to the defendant, in which the following language is used: “ ‘We are pleased to confirm verbal sale made to you to-day of 320 barrels pure linseed oil for delivery in month of October.’ (The italics in the letters and contract are by the court.) “Within two or three days thereafter plaintiff mailed to defendant the printed form of contract in evidence as exhibit B, and the same was duly signed by both parties. “Under this contract portions of the oil were delivered in tank wagons or cooperage at various dates during the month of October, and on October 20 defend — 4 — ant wrote to plaintiff ordering one tank ear of oil under this contract, as follows: ‘ ‘ ‘ Please enter our order for immediate shipment for one tank car, 10,000 gallons raw linseed oil, routing same to us care of the Terminal Railroad Association, Sixteenth street yards, St. Louis, Missouri. This shipment to be applied against our contract for October delivery.’ “And on the same day plaintiff acknowledged receipt of this order, using the language, “ ‘. . . to be applied, against your October contract. This will go forward to our factory, Minneapolis, Minnesota, where it will have immediate attention. ’ “The tank car of oil was not shipped from Minneapolis until October 30. “On October 31, defendant wrote and advised plaintiff that defendant would refuse to receive the tank car shipment of oil ordered October 20th, unless delivery of same was made October 31, 1911. “On November 1, 1911, plaintiff delivered to defendant bill of lading for said car, but defendant returned the same on the same day. “On November 6, the tank car arrived in the city of St. Louis and was ready for delivery to defendant and was tendered to defendant on the 7th day of November, 1911. “On November 9, plaintiff advised defendant that unless said car was accepted plaintiff would sell the same and hold defendant liable for any loss occasioned thereby. “Defendant having refused to accept said tank car, plaintiff thereafter sold same for the best price obtainable, to-wit, $6868.40, which said sum was $1392.61 less - than the price provided for in the contract. Plaintiff was also put to the expense of demurrage charges of $11 and switching charges of $4 on account of said tank car. — 5 — “The real controversy in this case turns upon the construction of the written contract executed by the parties, and unless there is some doubt as to its construction, no reference whatever need be made to the other facts. “That contract, in so far as its provisions are in any wise material in determining the issues raised, is as follows: “ ‘The seller (plaintiff) hereby sells and agrees to deliver and the buyer (defendant) hereby purchases and agrees to receive 320 barrels ... of pure linseed oil, for shipment in carload quantities, as follows, and within ten days of specified dates: -barrels, January; -barrels, February, &c. 320 barrels, October, raw linseed oil at 82 cents, boiled linseed oil at 83 cents per gallon, f. o. b. cars or buyer’s factory, St. Louis, Missouri, freight allowed to St. Louis, Missouri; buyer to furnish specifications for shipment in ample time to enable seller to execute order within the period or periods named above. In absence of specifications a carrying charge ... as long as the seller shall be willing to carry the same. . . . Orders for tank cars to be filled by capacity of car convenient to ship, with minimum of about 5000 gallons and maximum of about 10,000 gallons. Minnesota State weights to govern. The whole contract is stated herein.’ “Counsel agree that in our search for the true intent of the parties we should look, first, to the contract itself, and if, after a careful consideration of it and all that appears therefrom, a reasonable doubt still remains, then, and only then, should we seek light elsewhere; and in looking to the contract we should remember that we must look to its each and every provision and to what may be fairly inferred therefrom, and should so construe the whole contract as to give some meaning to each and every part thereof. In a — 6 — word, that we should not readily yield to any construction of the contract which will give to any word, phrase or sentence used by the parties no meaning or value whatever; but should, on the other hand, attempt to so harmonize each and every provision as to give some force and effect to all. “Looking to the contract, then, in this light, the crucial question, as it appears to the court, is, to what do the words of the contract, ‘within ten days of specified dates,’ refer! Do they refer to the dates therein-after specified, to-wit, October, or do they refer, as counsel for defendant contends, to the dates on which the buyer may thereafter furnish specifications; and if the latter, then of what use in the contract is the provision that the buyer shall ‘furnish specifications in ample time to enable the seller to execute the order within the period or periods above named?’ “If the seller must execute the order within ten days after specifications are given by the buyer, then the ‘in ample time’ provision has no meaning whatever; and to such a construction we should not, as above stated, yield readily. “Again, if the parties had intended the phrase ‘within ten days of specified dates’ to refer to the dates on which specifications were to be given by the buyer, would it not have been more natural to have said, ‘within ten days after specifications are given or received!’ “Then, too, the use of the words ‘within ten days of specified dates,’ followed by a colon and then by certain enumerated dates, is just as if the parties had said, ‘within ten days of specified dates, as follows, to-wit:’ ‘ ‘ Could there be any doubt as to what this phrase refers to, if the date inserted had been October 31, instead of just ‘October?’ “Looking further to the contract, we find that it is a blank form used by the seller in all cases whether — 7 — the buyer is located in St. Louis or San Francisco, and it is but reasonable to infer from its provisions that the place from which the seller is to ship is Minnesota. ‘‘ This being so, and adopting for the time being defendant’s contention that ‘execute the order’ means delivery in St. Louis, it is most reasonable that the contract should provide for a fixed time, to-wit: ‘within ten days of specified dates,’ for the execution of the order; and a variable time, to-wit: ‘ample time,’ depending on all the circumstances of each case, for thes giving of specifications by the buyer. “In short, if we give to the term ‘in ample time,’ etc., any meaning whatever, it must be, not ten days, but a varying time; and to adopt defendant’s contention that ‘within ten days of specified dates’ refers to the dates when specifications are to be given by the buyer, necessarily robs the ‘ample time’ provision of all meaning whatever, and cannot therefore be accepted* as a fair construction of the contract. “This contention to the side, the term ‘within ten days of specified dates’ can only refer to the date set out in the contract, to-wit: October, and means, in connection therewith, that the seller agrees to sell and deliver within ten days of the specified date, October. “This being so, and the tender having been made within ten days of October, it would be useless to consider the other questions argued by counsel. “Upon consideration of the premises, there being no controversy as to the amount the plaintiff is entitled to recover, if at all, judgment will be for the plaintiff in the amount sued for.” In addition to what Judge Cave has so well said, we will add: It appearing that the contract is not ambiguous on its face, the court very properly excluded from consideration the evidence offered with a view of eliminating the words, “and within ten days of speci — 8 — fied dates,” so as to amend it, requiring the delivery to be made during the month of October. Touching the suggestion that a date means a point of time, it is to be said that, though it means a given day of a given month of a given year, we are not concerned here so much with the technical import of the word as with the true intention of the parties ascertained from the entire instrument. If this appears clear — that is, not shrouded in ambiguity — it is improper to look to extrinsic evidence for aid in interpretation. It appears to be entirely clear to us that the parties employed the word “October” in the sense of and as the date when delivery was to be made and then provided ten days thereafter to accomplish the fact. The judgment should be affirmed. It is so ordered. Reynolds, P. J., concurs. Allen, J., dissents and deems the judgment of the court in conflict with Laclede Const. Co. v. T. J. Moss Tie Co., 185 Mo. 25, 84 S. W. 76; Ellis v. Harrison, 104 Mo. 270, 16 S. W. 198, and other cases cited in-the dissenting opinion. He, therefore requests that the cause be certified to the Supreme Court for final determination, and it is accordingly so ordered.