Opinion
No. 43352.
April 13, 1953.
APPEAL FROM THE DIVISION TWO CIRCUIT COURT, GREENE COUNTY, WARREN L. WHITE, J.
Neale, Newman, Bradshaw, Freeman Neale, Flavius B. Freeman, Ransom A. Ellis, Jr. and Jean Paul Bradshaw, Springfield, for appellant.
Warren McE. Turner and Wendell H. Richmond, Springfield, for respondent.
Amos-James Grocery Company, a corporation, and plaintiff below, sued Canners Exchange, a corporation, and defendant below, praying $3,229.03 as damages for an alleged breach of contract. Upon the trial, a jury was waived. At the close of plaintiff's evidence the court sustained defendant's motion to dismiss plaintiff's cause of action. After proper procedural steps plaintiff appealed to the Springfield Court of Appeals. That Court affirmed the judgment entered in the trial court, 250 S.W.2d 171. Upon petition therefor we ordered the cause transferred here. The sole question for our instant ruling is whether upon the pleadings and the evidence plaintiff made a submissible case.
It is the theory of plaintiff's petition that on August 11, 1949, plaintiff contracted to purchase from defendant 2,200 cases of No. 2 water pack blackberries, which conformed to government specifications, at a price of $1.85 per case, f. o. b. Bolivar, Missouri; that the trade custom required that such berries purchased for sale to the government should meet government specifications, which required a grade of seven degrees brix; that such trade custom was known to defendant and became and was a part of the contract; that the berries [which defendant later offered] did not meet the above specifications and were rejected by the government; and that plaintiff had to purchase elsewhere the berries to fill its government bid, and was thereby damaged in the sum of $3,229.03. Those allegations were all denied.
The testimony adduced in the trial court was long and involved. In addition to the oral testimony some twenty-nine documentary exhibits, some of them evidencing the highly technical features of the trade usages and customs in the merchandise brokerage field, were received in evidence. From a study of the transcript and exhibits we have concluded that the facts are fully and fairly stated in the opinion of the Court of Appeals, 250 S.W.2d loc. cit. 173 to 180, and that we need not here re-state them at length. Inasmuch as neither party here contends that the statement of facts by the Court of Appeals is not a fair and adequate statement, we adopt the statement of facts as stated by that Court.
We also agree with and approve the reasoning of the Court of Appeals and its stated conclusion that there is no substantial evidence in this record to prove the existence of a valid and enforceable contract between these parties.
There is but one issue upon this appeal. That issue is, whether there is any substantial evidence to establish the contract alleged. The contract alleged was that defendant agreed to furnish plaintiff blackberries meeting government specifications. All of the evidence before us was introduced by plaintiff.
The letter of August 11, 1949, set out 250 S.W.2d loc. cit. 174, 175, contained the offer and the only offer shown in this evidence. That offer was in writing, and was orally accepted. It clearly appears that the offer of that August 11th letter falls far short of establishing that defendant offered to sell to plaintiff 2,200 cases of berries which would comply with government specifications by containing at least a grade of seven degrees brix.
It is contended by plaintiff that the letter of August 11th is ambiguous and contains no specifications as to the berries, and offers only cases of "No. 2 Water Pack Blackberries." Mr. Klein testified with respect to that:
"Q. Now what did she [Mrs. Deck] tell you about the kind of berries that they were offering? A. I don't know that she told me what kind of berries. * * *
"Q. Now then, you were told in a telephone conversation that neither of these lots [of berries] that were referred to in the letter of August 11th had government grades, or have any grading? A. At that particular time?
"Q. Yes. You were told that? A. Yes, sir.
"Q. And you informed Mr. Pringle of that fact, did you not? A. Yes, sir, we did.
"Q. And you also informed him that they would furnish the samples if requested? A. That's right."
Plaintiff urges that parol evidence may be employed to explain an otherwise ambiguous letter. But this letter of August 11th is not ambiguous. The letter merely omits to set out any specifications for the berries offered, designating them as "No. 2 Water Pack Berries", and offers to furnish samples of such berries. A letter offering merchandise for sale is not ambiguous because not setting out detailed specifications on the offered merchandise, where the letter itself offers to furnish samples of the offered merchandise for the purchaser's inspection.
Mr. Klein did not tell plaintiff that the 2,200 cases of the Bolivar berries would meet any grade whatever. He admitted he knew those Bolivar berries had no grade. And not only does the letter of offer of August 11th contain no representations as to quality, but it also negates any such theory or idea for it offers to furnish samples. It is clear, therefore, that under these circumstances parol evidence may not be received to vary the offer letter of August 11th.
We have carefully considered the contentions made by plaintiff in the Court of Appeals, and the cases plaintiff there cited; and also the additional contentions of plaintiff's motion to transfer and of its supplemental brief in this Court and plaintiff's additional authorities cited here. Plaintiff's contentions all ignore the basic fact that the offer orally accepted did not establish the contract as pleaded and relied upon by plaintiff. The plaintiff simply did not prove its case.
The judgment of the circuit court is affirmed.
All concur.