Opinion
No. 6989.
May 8, 1951.
APPEAL FROM THE LAWRENCE COUNTY CIRCUIT COURT, LAWRENCE COUNTY, THOMAS A. JOHNSON, J.
"Not to be published in the State Reports."
William A. Ratican, Jr., of Aurora, Robert Stemmons, of Mount Vernon, for appellant.
Sesco V. Tipton, of Springfield, for respondent.
This case was filed in the Circuit Court of Lawrence County on October 14, 1949. An amended petition was filed and, on January 5, 1950, such petition was held by the trial court to be partially defective. The plaintiff thereafter filed a second amended petition.
In such second amended petition plaintiff alleged that defendant violated a contract, executed on August 16, 1943, which authorized plaintiff to pick up milk and return empty cans on a certain designated route and required payment to plaintiff of 24 cents per hundredweight of milk so picked up. It was alleged that defendant terminated such contract, without giving 30 days notice in writing to plaintiff, as provided in the contract, and turned such milk route over to another person.
Plaintiff alleged performance of the contract on his part, until defendant finally terminated it. He alleged that the action of defendant "deprived plaintiff of an opportunity to sell said milk route," which was of the reasonable value of $2000, and that the action of defendant injured the reputation of plaintiff and deprived him of profit during 30 days, all in the sum of $165, and defendant deprived plaintiff of hauling for others, out of which he would have made an additional sum of $300. The total demand of plaintiff in the second amended petition was for the sum of $2900.
Defendant filed a motion to dismiss, which was overruled, and he thereupon filed answer to such second amended petition. In the answer the corporate capacity of defendant and the execution of the contract were admitted. All other allegations of such second amended petition were denied.
The case was tried by a jury. It returned a verdict for plaintiff in the sum of $1875, and judgment was rendered on such verdict. Defendant filed motion for a new trial, or, in the alternative, for a directed verdict, which motion was overruled by the trial court, if plaintiff would enter a remittitur in the sum of $175. The required remittitur was entered by plaintiff, leaving a judgment for plaintiff in the sum of $1700. From this judgment, and after such remittitur defendant appealed to this Court.
As a witness, plaintiff identified the contract of August 16, 1943. He said he continued to haul milk for defendant every day, until notified by it in the fall to haul milk only every other day. As soon as the weather got warm, he resumed the hauling of milk every day. No complaint was made by defendant as to the performance of the contract by plaintiff as to such milk hauling every other day. The milk route was later taken way from plaintiff by defendant and given to someone else, for which plaintiff claimed damages. Plaintiff said he was making about $200 a month at the time the hauling of milk contract was terminated; but the trial court refused to permit plaintiff to testify concerning the hauling of produce for others, when hauling milk for defendant.
On examination defendant's testimony was that plaintiff refused to haul milk, when requested to do so by defendant's superintendent. Before then plaintiff had been hauling milk only from the best producers. When defendant insisted on milk being hauled from all producers, plaintiff endeavored to get another truck, so he could do so. Plaintiff's own truck, was then broken down and in the shop for repairs. Plaintiff was unable to get another truck. Thereupon the milk route was turned over by defendant to another. Plaintiff said that the defendant never gave him notice in writing that the contract was terminated.
Ross Arthur was called as a witness by plaintiff. He testified that he sold plaintiff the milk route and that there was a market value for such a milk hauling contract, although the witness did not testify as to what such value was. Plaintiff, being recalled as a witness, testified that the reasonable market value of his milk route was $2000.
Plaintiff then called Alfred Beckemeir as a witness. Beckemeir said he had hauled milk for plaintiff a few times. He also did so at the request of defendant's superintendent, when plaintiff's truck broke down. He succeeded plaintiff as a milk hauler, although he said he received nothing for it. At the conclusion of plaintiff's evidence, the defendant unsuccessfully filed its motion for a directed verdict.
Defendant then called John Hancock, who testified that he was field man for defendant. He said there was one day before November 30, 1944, when plaintiff hauled no milk and several days when plaintiff did not haul all of the milk. Hancock said he talked to plaintiff about hauling all of the milk. He said plaintiff told him his truck was broken down and he could not and would not haul all of the milk; that he got another fellow at that time to haul the milk, and plaintiff hauled no more milk for defendant. He did not claim to have given written notice to plaintiff. Nothing of special importance was brought out of Mr. Hunter on cross-examination, and, at the conclusion of his testimony, defendant rested.
Plaintiff then called Oren Williamson in rebuttal. He testified that plaintiff came into his garage and asked for a truck to haul his milk. He did not fix the date of such request. He had no truck for plaintiff. There was no further testimony and defendant again unsuccessfully asked for a directed verdict.
The case was briefed by counsel and was submitted here on oral argument. The first contention of defendant in its brief is that plaintiff "failed to make a submissible case." The second and third contentions attack instructions I and IV, given by the trial court. The fourth assignment of error in appellant's brief is that there was no evidence to sustain a judgment for plaintiff, even for the sum of $1700.
The contract, admitted by plaintiff and defendant, was for one year and provided for self-renewal, if 30 days' written notice should not be given by the parties thereto. The contract was dated August 16, 1943, and was terminated on November 30, 1944. It was therefore in effect for more than one year.
There was a sharp disagreement as to what took place on November 30, 1944. By such contract plaintiff agreed to furnish daily to defendant at its plant in Mount Vernon, Missouri, sweet milk from farmers located in certain townships in Lawrence County, Missouri. While such contract was for one year, and possibly longer, except on 30 days' notice prior to August 16th of each year, the contract specified plaintiff's duty as follows:
"The carrier shall transport daily, Sundays and holiday included, by means of suitable equipment supplied and maintained by him at his expense and operated likewise at his expense, and shall deliver to the canner at the latter's plant aforesaid, from each and every place specified in the above mentioned schedule or in any future alteration thereof which may be made as above provided, whatever fresh sweet milk may be tendered him from day to day at each said place for transportation to the canner, and the carrier likewise shall transport daily from the canner's said plant and shall deliver promptly at each of said places, all empty milk cans which the canner may desire to send thereto.
"Should Act of God or extreme weather conditions, which could not have been foreseen and provided against by the carrier, in the exercise of reasonable foresight and diligence, prevent the latter from furnishing any kind of fresh sweet milk and empty milk can transportation service whatever upon any certain day or days during the term of this contract or any renewal hereof, then and in such event, the carrier shall give to the canner notice to that effect as soon as it may be reasonable within his power so to do."
Thus it will be seen that daily service was required, except as provided in such contract. There is no controversy whatever that plaintiff was permitted to deliver milk every other day during the warm season, although the contract plainly provided that delivery of fresh milk should be made each day. The plaintiff agreed to deliver such milk regardless of the condition of his means for hauling and delivering such milk.
Owing to the condition of his truck, plaintiff was unable to deliver more than 800 pounds of milk on the day before November 30, 1944; while his usual load was in the neighborhood of 3500 pounds of milk. The superintendent of the milk company called on plaintiff on November 30, 1944, and insisted on his making delivery of milk on that date. As his truck was in the shop for repairs, plaintiff tried to secure the use of another truck, but failed. Plaintiff could not make delivery of that much milk. When he came to defendant's plant in Mount Vernon on November 30, 1944, he was informed that the milk route had been turned over to another.
While there is no evidence that defendant performed such contract by giving the required written notice, we believe, from all of the evidence, that plaintiff had not fully performed such contract on his part by making daily deliveries of milk as required. The contract itself specified daily deliveries and it is in evidence that plaintiff was unable to and did not comply with the contract in that respect, even though deliveries every other day were permitted by defendant at times when it was warm weather.
We do not think plaintiff had shown that he had fully complied with the contract on his part, and therefore was not entitled to recover damage for breach of the contract by defendant. Failure of plaintiff's truck was not one of the specified contingencies which would excuse failure of performance of the contract on plaintiff's part.
Before plaintiff could recover for breach of such contract, he must have proven his own full performance of it. In Kreitz v. Egelhoff, 231 Mo. 694, 132 S.W. 1124, 1127, Judge Lamm, for the Missouri Supreme Court, said: "Plaintiffs sue at law for damages for nonperformance of a contract. Defendants were not obliged to perform except on condition plaintiffs performed. That he who sues at law for damages for nonperformance must allege and prove his own performance is elementary."
In Collins v. Roth, 224 S.W.2d 129, 131, Judge Broaddus, of the Kansas City Court of Appeals, said: "Defendant's main contention is that plaintiff failed to perform his part of the contract, and cases are cited in support of the rule, that before a party to a contract can recover on the contract, he must show a performance on his part or an excuse for his non-performance. With this rule we find no fault."
Judge Broaddus did not mean a simple excuse for non-performance, agreed to by both parties. The contract in this case specified what would excuse its nonperformance, and the condition of plaintiff's truck was not named as one of the acceptable excuses for non-performance of the contract by plaintiff.
In Long v. Rogers, Mo.App., 185 S.W.2d 863, 865, Judge Fulbright of this Court, with the concurrence of the late Judge Smith and the writer, said: "Since plaintiff's case was based on the establishment of the contract to which he testified, it was incumbent upon him to prove performance upon his part before he could recover."
In Ellis Gray Milling Co. v. Sheppard, 359 Mo. 505, 222 S.W.2d 742, loc. cit. 748, Judge Ellison of the Supreme Court, quoting from Ward v. Haren. 139 Mo.App. 8, 119 S.W. 446, said: "if a party, by his contract, charge himself with an obligation possible to be performed, he must make it good unless its performance is rendered impossible by an act of God, the law, or the other party. Unforeseen difficulties, however great, will not excuse him.'"
The contract signed by plaintiff and defendant carried its own excuse for failure of plaintiff to deliver milk, and trucking equipment of plaintiff was not one of those excuses. The contract executed August 16, 1943, required that it be performed by plaintiff, except for an Act of God, or extreme weather conditions "which could not have been forseen and provided against" by plaintiff. That part of the contract was never modified.
The plaintiff relies on those cases where modification would change the duties of the contracting parties. Such a case is Day v. Mechanics' Traders' Insurance Co., 88 Mo. 325, cited by plaintiff.
Plaintiff's long quotation from 12 American Jurisdiction, 1007, shows that a subsequent modification can be made, even in face of the wording of the original contract, where agreeable to both parties to such contract.
The contract between plaintiff and defendant might have been modified, by providing that plaintiff need not deliver milk if plaintiff's machinery broke down; but such a modification was not made and plaintiff could only sue for a breach of the contract when he had fully performed it himself.
The conclusion we have reached, together with the reasons therefor, so fully discussed, render it unnecessary for us to consider other objections made by defendant. Plaintiff was not entitled to recover at all, and the judgment in his favor, even after the remittitur was made, cannot be approved, and must be reversed.
It is so ordered.
VANDEVENTER, P. J., and McDOWELL, J., concur.