BOYLES v. KINGSBAKER BROS CO (1935)

As far as are necessary to a decision of the instant appeal, the facts appear to be that, acting for and in behalf of plaintiff, California Fruit Exchange entered into a contract with the defendant corporation by which California Fruit Exchange agreed to sell to said defendant, and the latter agreed to buy from the former, about 150 tons of “number one grade pears”; that, on attempted delivery of the pears, each of the first three carloads thereof received in succession and on different respective dates was rejected by the defendant for the asserted reason that the pears were inferior to and did not measure up to “number one grade,” and that for such assigned reason California Fruit Exchange, as the agent of plaintiff, acquiesced in and agreed to such rejection; that, immediately after the third car of such pears had been thus rejected, the defendant orally announced to California Fruit Exchange that the defendant would consult its attorney for the purpose of ascertaining “whether they (California Fruit Exchange) haven't broken their contract”; and that within a few days thereafter, by written communication addressed to California Fruit Exchange, the defendant notified the latter that the defendant considered the contract “at an end.” In the meantime, and on different respective dates, plaintiff had shipped to the defendant a fourth and a fifth car of pears, each of which, for a reason identical with that theretofore given as to each of the first three cars, was likewise rejected by the defendant; and, as before, the said rejection was agreed to and acquiesced in by California Fruit Exchange. Thereafter, but prior to a time when plaintiff had become personally aware of the fact that the defendant had declared the contract “at an end,” plaintiff had shipped four other cars of pears to the defendant; but, as before, and for the reason, applicable to each of such four cars, which theretofore had been assigned for the rejection of each of the preceding cars, the defendant declined to accept them, or any of them. The remainder of his pears, consisting of two cars thereof, plaintiff shipped to New York City, where they were sold. In a subsequent action brought by plaintiff against the defendant to recover from it a judgment for alleged damages that plaintiff claimed had resulted to him from the refusal of the defendant to accept the pears contained in the fourth to the eleventh cars, inclusive, as “number one grade” and to pay to plaintiff the contract price therefor, a judgment was rendered in favor of plaintiff. It is from that judgment that the instant appeal is taken.

On the trial of the action, plaintiff contended that the pears that had been shipped to the defendant were “U. S. grade No. 1,” and, consequently, that the defendant had no right to reject them. On the other hand, the defendant asserted that even though it should concede that the greater part, although not all, of the pears were of the quality known as “U. S. grade No. 1,” still they did not measure up to the terms of the contract, for the reason that the contract was not made with reference to such a standard of quality, but that, to the contrary, the “number one grade” contemplated by the parties to the contract and which they had in mind at the time of its execution, and as to which part of the contract the minds of such parties had met, was “number one grade of California Fruit Exchange,” which was a higher grade than “U. S. grade No. 1”–especially in the condition that whereas, by the requirement applicable to “U. S. grade No. 1,” a “tolerance” (or departure from perfect fruit) of 10 per cent. was permissible–by the requirements applicable to the “number one grade of California Fruit Exchange,” a “tolerance” of not to exceed 5 per cent. was allowable. In that respect the testimony given by the representative of California Fruit Exchange and the representative of the defendant, by whom the contract was made for their respective principals, was in entire agreement, one with the other, to the effect as thus contended by the defendant. In addition thereto, the acts and conduct generally of such representatives with reference to the rightfulness of the rejection of the pears by the defendant, for the reason hereinbefore set forth, was corroborative of the intention of the parties to the contract with regard to the quality of the pears that was the subject of their agreement. As to that point, no evidence was introduced to the contrary.

If it may be assumed that the words “number one grade,” by force of their ordinary significance, were uncertain in their designation of the quality of the fruit that related to the contract, it is clear that the evidence adduced on the trial of the action could leave no doubt regarding the meaning that was properly attachable to such words. Considering the fact that at least as to the first three of the cars that were shipped to the defendant, plaintiff breached his contract, the defendant was thereupon and thereafter justified in declaring the contract “at an end,” and, consequently, was not liable in damages that may have resulted to plaintiff because of his assumed inability to sell the remainder of his pears at a price equal to or greater than the price at which he had contracted to sell them to the defendant. Lindsborg Milling & Elevator Co. v. Danzero (Mo. App.) 193 S. W. 606; Morrison, etc., Co. v. Leiser, 73 Mo. App. 95, 98; Ungerer & Co. v. Louis Maull C. & F. Co., 155 Mo. App. 95, 134 S. W. 56; McDonald v. Kansas City B. & N. Co. (C. C. A.) 149 F. 360, 8 L. R. A. (N. S.) 1110, and authorities therein cited.

It becomes unnecessary to discuss other points presented on the appeal.

The judgment is reversed.

HOUSER, Justice.

We concur: CONREY, P. J.; YORK, J.