Ellis Gray Milling Co. v. Sheppard ( 1949 )

The first assignment in respondents' motion for rehearing complains of error in our holding that the original. September, 1945 contract for the shipment of the corn was not modified so as to provide for a $1.43 price per bushel instead of $1.22-½ for the two cars of corn to be shipped in July, 1946, here involved. On that point respondents stress broker Carter's letter of July 5, 1946 to respondents. We think it does not help respondents, and set it out, with interpretative parentheses and emphasis. It said:

"On the last two cars (in June) you shipped them (appellants) he (appellants) allowed you to add 25¢ to this price ($1.22-½), and he (appellants) advises today that you want to ship them (appellants) two cars at the prevailing market today of $2.35 basis Omaha.

"There was nothing stipulated in your contract (allowing the25¢ raise) regarding this last advance on corn, and we believe you should go to bat with your principle (Omaha Elevator Co.) and have these last two (July) cars of corn shipped on the basis of the previous two (in June) you shipped Murfreesboro (appellants)."

These two June cars were shipped at $1.43 per bushel. And the broker's letter does show he advised respondents to try to get the Omaha Elevator Company to ship the two July cars at that same price. But that defense was not pleaded in their answer. The allegation in paragraph VII thereof was that appellants in the modified contract agreed to pay the "price placed on said corn by the government" for May, June and July — that price for July being the market price. And the broker Carter's letter expressly declares the latter was not so agreed in the modified contract.

Furthermore the respondents' testimony was equivocal and conflicting as to the terms of the modified contract. And they refused to ship the July corn at the $1.43 price, which they here contend was the modified contract price. The appellants' testimony was that the 3¢ and 25¢ modifications applied to particular monthly shipments and not to the July corn, and the whole record so indicates.

[8] The second assignment in the motion for rehearing is that the judgment for $3453.66 was excessive, because it was based[750] alone on the difference in the market price of the two cars of corn appellants purchased on the open market in July, and the contract price of $1.22-½ per bushel, without taking into account the storage charge of 1/30 cent per day per bushel, which appellants would have had to pay in addition if respondents had delivered the July corn. The point is well taken. Respondents say it would make a difference of 7¢ per bushel. The judgment should be reduced by whatever amount the trial court finds the total storage charge on the July corn bought by appellants would have been under the contract in suit.

[9] The third assignment contends that Ward v. Haren.139 Mo. App. 8, 14, 119 S.W. 989, referred to in the opinion, is not in harmony with two later cases cited by them: Curry v. Boeckeler Lbr. Co., 224 Mo. App. 336, 343(5), 27 S.W.2d 473, 476(5), and Mount Vernon Car Mfg. Co. v. Hirsch Rolling Mill Co.,285 Mo. 669, 683(1), 227 S.W. 67, 71(1). But in both of these cases the original contract was modified by agreement of the parties. Our citation of the Ward case was in connection with respondents defense of frustration of the contract by subsequent events independent of any modification by agreement.

The motion for rehearing is overruled, and the cause is remanded with directions to the trial court to modify the judgment as indicated in the second preceding paragraph hereof.