(273 S. W.) SCULLIN STEEL CO. v. MISSISSIPPI VAL- 7. Sales 89-Evidence held not to show express agreement extending time for delivery of pig iron. Evidence held not to show express agree(Supreme Court of Missouri, in Banc. May 23. ment extending time stipulated in written con 1925.) 1. Appeal and error 761-Assertion of errors under points and authorities, in brief and argument, held sufficient compliance with rule. Assertion of errors under subdivisions of points and authorities, in brief and argument filed, held sufficient compliance with rule 15. 2. Evidence 420(5)—Parol evidence held inadmissible to show delivery of pig iron was conditioned on completion of seller's plant. Where written instrument was unconditional and unambiguous as to time of delivery of pig iron, parol evidence was inadmissible to show that delivery was further conditioned on completion of seller's plant. 3. Sales 413 Unless defendant sustained burden of showing extension of conditions of contract or waiver thereof, contention that plaintiff declared on one cause of action and recovered on another not allowed. Where plaintiff declared on express contract for sale of pig iron, and defendant alleged that delays in delivery arose under conditions provided for in contract, and also that there was extension or waiver of conditions, unless defendant sustained burden of showing change or waiver, contention that plaintiff declared on one cause of action and recovered on another cannot be allowed. tract for delivery of pig iron. 8. Sales181 (11) Evidence held not to show waiver by buyer of express condition for delivery of pig iron. Evidence held not to show waiver by buyer of express condition of contract for delivery of pig iron in monthly installments during March, April, May, and June, 1920. 9. Appeal and error ~1058(1)—Error, if any,⚫ in excluding evidence of condition of seller's plant at time of contract, and buyer's knowledge thereof, held harmless. Where contract for sale of pig iron was executed with knowledge of condition of seller's uncompleted plant, in buyer's action for seller's breach, excluding evidence of condition of seller's plant and knowledge thereof by buyer was not reversible error; error, if any, not being perpetrated because evidence subsequently admitted showed that plant was not in operation when contract was made. pig iron not harmed by holding that contract was one to manufacture and deliver. breach of contract to deliver pig iron, since In buyer's action for damages for seller's seller during time of alleged breach made no offer to deliver iron obtained through purchase, it lost nothing through court's holding 4. Sales 81 (1)-Time of delivery of pig that contract was one to manufacture and de liver. 11. Sales181 (11)—Evidence held not to show seller prevented by accident from complying with contract. Evidence held not to show seller of pig iron was prevented by accident from making expressly stipulated deliveries. 12. Sales 85(2) Excluding evidence of weather conditions not within terms of contract excusing delivery held proper. Where contract for sale of pig iron stipu Provision of contract for sale of pig iron as to delivery of equal monthly installments in named months written into contract, with print-lated that seller should not be liable for damed provision that, if shipment was to be by installments, contract was to be treated as separate for each installment, with other facts, held to indicate intention to make time of delivery of each installment a condition precedent as to each installment. ages for failure to deliver caused by strikes, there was no error in excluding evidence, in accidents, or other causes beyond its control, buyer's action for breach, of extremely cold tion from which seller received sand; weather weather, and report of weather bureau in secconditions not naturally falling within classes specified. 6. Sales 181(1)-Seller had burden to show Where contract for sale of pig iron was completely expressed in writing, and only condition absolving seller from liability was for its failure to deliver, caused by strikes, accidents, or causes beyond its control, burden rested on seller to show delay in delivery was due to causes specified, or that there was agreement subsequent extending time, or waiver by buyer. Sales 85(2)-Seller's failure to procure coke to manufacture pig iron held not to excuse its breach of contract. Where seller, in contract to manufacture and deliver pig iron, assumed risk of procuring necessary coke as material to be used in manufacture, its failure to procure it was not within clause of contract exempting it from liability for damages for failure to deliver, caused by strikes, accidents, or other causes beyond its control. For other cases see same topic and KEY-NUMBER in all Key-Numbered Digests and Indexes 14. Trial 89-Refusal to strike testimony, view of court's instruction on waiver, not to permitted to be given out of order, as rebut- have misled jury. tal to testimony to be given by defendant, 20. Trial held without reversible error. Where testimony to rebut contention of defendant that failure to procure coke was reason for nondelivery of pig iron, was not part of plaintiff's case, but court permitted witness for plaintiff to testify out of order, as rebuttal to testimony to be offered by defendant that coke was not procurable, and thereafter held that failure to procure coke was not within excepting clause of sale contract, refusal to strike rebuttal testimony of plaintiff's witness was not reversible error. 15. Trial 75-Plaintiff, by introducing witness to rebut testimony of defendant to be offered, held not estopped from objecting thereto. Where testimony offered in rebuttal was not part of plaintiff's case in chief, by offering to give it out of order to rebut testimony to be offered by defendant in defense, plaintiff was not estopped from objecting to testimony sub sequently offered by defendant. 16. Sales 416(2)—Evidence that buyer was compelled to and did purchase pig iron on the market properly excluded. In action for seller's breach of contract to manufacture and deliver pig iron during named months, evidence that buyer, on account of seller's failure to deliver, was compelled to and did purchase pig iron on the market, was properly excluded. 17. Evidence 357-Admission of letter referring to buyer's being compelled to buy pig iron on market held without error. Statement in letter to seller that buyer was compelled to buy pig iron on the market was part of demand for delivery, and was pertinent on question whether buyer had waived any part of contract, and hence admission of whole letter was without error. 18. Sales 421-Instruction that there was no substantial evidence that seller was prevented from delivering pig iron by delay or congestion of railroad or carrier in delivering materials held proper. In buyer's action for seller's breach of contract to manufacture and deliver pig iron during named months, instruction that there was no substantial evidence that seller was prevented from delivering iron by delay or congestion of railroads or carriers in delivering materials held authorized. 19. Trial 296 (2)-Instruction that acceptance of one installment or portion thereof did not waive right to require other installments to be delivered under contract held not misleading on subject of waiver. In buyer's action for seller's breach of con⚫ tract to manufacture and deliver pig iron in installments in named months, instruction that, under contract, acceptance of one installment or portion thereof did not waive right to require other installments to be delivered in accordance with contract, and that acceptance of part of one installment, long after time named for delivery thereof, was not waiver, held, in 234(7)—Instruction held properly to place burden of proof. Where contract for manufacture and de livery of pig iron was subject to condition that seller should not be liable for failure to deliver, caused by strikes, accidents, or other causes beyond its control, in buyer's action for breach, court properly instructed that burden was on buyer to establish, by preponderance of evidence, facts necessary to verdict in its favor issue, as to whether seller was excused from under instructions given, and that burden of making delivery, due to strikes, accidents, or other causes, or whether buyer had waived rights under contract, was on seller. 21. Sales 418(2)-Damages properly defined as difference between contract price and market price on last day of month each installment was to be delivered. Where pig iron was to be manufactured and delivered during months of March, April, May, and June, 1920, in buyer's action for seller's breach, measure of buyer's damages was properly defined as sums equal to the difference between the contract price and the market price on the last days of March, April, May, and June, 1920. 22. Pleading 262-Denying defendant right to file amended answer and counterclaim held not arbitrary. · Suit was filed May 21, 1921, answer filed August 26, 1921, and reply filed January 3, 1922, and January 16, 1922, defendant was granted continuance, and case reset for February 20, 1922. On February 15, 1922, defendant made oral application for leave to file amended answer and counterclaim, and thereafter case was assigned for trial when application was again refused. Held, under facts, that there was no arbitrary and unjust exercise of discretion in denying right to file counterclaim. 23. Pleading 229-Trial courts should be liberal in allowing amendments. Trial courts should be liberal in allowing amendments. Graves, C. J., and Walker, J., dissenting. Appeal from St. Louis Circuit Court; J. Hugo Grimm, Judge. Action by the Scullin Steel Company against the Mississippi Valley Iron Company. Judgment for plaintiff, and defendant appeals. Affirmed, Jos. T. Davis and Nagel & Kirby, all of St. Louis, for appellant. Jourdan, Rassieur & Pierce, of St. Louis, for respondent. LINDSAY, J. The plaintiff obtained a verdict and judgment against defendant upon both of the two counts of its petition, each of which set out that defendant had sold and agreed to deliver to plaintiff certain quantities of machine cast pig iron, and had failed to deliver the same, to plain tiff's damage. The contract pleaded in each count was for the sale and delivery of 5,000 tons of iron of certain specifications, to be delivered in equal monthly installments, during the months of March, April, May, and June, 1920, at the price of $35 per ton. The contracts so pleaded were made, respectively, on November 24, 1919, and November 26, 1919. The allegations were, in the first count, that defendant delivered 139 tons of said pig iron, and no more, and, under the second, that none was delivered, and that plaintiff was at all times ready to receive the same in accordance with the terms of the contract. The sum of $75,000 in damages was asked in each count. The answer, alike as to each count of the petition, after a general denial, admitted the making of the contracts, and pleaded as to each that it was subject to the condition therein, that defendant should not be liable in damages for .failure to deliver, caused by "strikes, accidents, or other causes beyond our control," and was also subject to the defendant being able to complete its blast furnace and plant in time to perform said contract. The defendant pleaded that it dismantled its plant in June, 1919, and contemplated completion thereof, March 1, 1920, and that, simultaneously with the execution of the contracts, it notified plaintiff that delivery of the iron was conditioned upon the completion of its plant. The defendant then pleaded that, due to strikes, and other causes beyond its control, its plant was not completed until May 31, 1920, and pleaded that the particular events causing that delay were that manufacturers of machinery and appliances necessary for completion were unable to deliver on account of causes beyond their control; that carriers were unable to deliver on account of congestion of traffic and other causes beyond their control; that 1 the provision for deliveries in the months specified in the contract. pleaded that, having secured some coke in The defendant October, 1920, it manufactured and delivered to plaintiff 97 tons of the required specifications, which plaintiff accepted, and then pleaded that in November, 1920, having secured the necessary coke, it notified plaintiff it was ready and willing to deliver said pig iron, and has been and is willing to do so, but plaintiff refused to accept the same. The reply was a general denial. The plaintiff had a verdict for $13,026.24 under the first count, and a verdict for $14,037.50 under the second count. These sums included interest computed at 6 per cent. from May 21, 1921, the date of filing the petition, to the date of the return of the verdict. the plaintiff that the brief for defendant [1] First may be noticed the contention of does not comply with rule 15, in that it contains no assignment of errors. contain such in a separate and formal way, It does not serted under various subdivisions of points but the errors claimed are nevertheless asfiled, and the compliance with the rule is and authorities in the brief and argument sufficient under what has been held in Esstman v. United Rys. Co. (Mo. Sup.) 232 S. W. 725, and other cases. evidence should have been sustained; that Defendant insists that its demurrer to the plaintiff, as a matter of law, was not entitled to In this mixed questions. There were some conversarecover. This raises numerous tions over the telephone between the parties, through the purchasing agent of plaintiir and the treasurer and representative of the defendant before the contract was executed. In a circular letter dated November 12, 1919, the treasurer of defendant addressed plaintiff's purchasing agent, calling plaintiff's attractors engaged in the erection of said planting machine pig iron, and the advantages of con- tention to defendant's arrangement for castand furnace were delayed by strikes and the proposed method for casting. bad weather; and that, after the completion letter it was stated: of said plant, about May 31, 1920, the defendant was further delayed in making deliveries under the contracts due to conditions and causes beyond its control, in that, although defendant had contracted for coke of the necessary quality and quantity to be used in the production of pig iron as specified in the contracts, the coke delivered to it (defendant) was wholly unfit and useless for the manufacture of pig iron of the quality specified, and that the coke market was such from May, 1920, to November, 1920, that defendant was unable to procure the coke necessary for said purpose all of which conditions, it was alleged, were beyond the control of defendant. "With our new furnace in operation, which be in position to furnish Goltra Special pig iron we believe will be about March 1st, we shall in basic, malleable, Bessemer, and foundry." the iron so proposed to be cast, and solicited made November 24, 1919, was prepared by The defendant then pleaded that it had kept plaintiff constantly advised of said con- period for shipment as March 1, to June 30, As transmitted, it specified the ditions, and that plaintiff, by reason of its 1920. knowledge thereof, from time to time extend- the provision therein providing for delivery Plaintiff's purchasing agent inserted ed the time for said deliveries, and waived in equal monthly installments within that 273 S.W.-7 Messrs. Scullin Steel Company, St. Louis, Missouri: We have sold you and you agree to buy: "Quantity: 5,000 tons machine cast pig iron. "Specifications: Silicon, 1.25 and under. Sulphur, .05 and under. Phosphorus, .25 and under. Manganese, .80 to 100. "Price: Per ton, 2,240 lbs., $35.00 f. o. b. cars their switch, thirty-five dollars. "Payment: Cash 30 days. "If buyer fails to make any payment when due, the seller shall have the right to cancel the contract or to postpone shipment of future installments until prior shipments are paid for. "Shipment: March 1st to June 30th, 1920. Equal monthly installments during March, April, May, and June. "Route via "If shipment is to be made in installments this contract for all purposes shall be treated as separate for each installment. "We shall not be liable in damages for failure to deliver caused by strikes, accidents or other causes beyond our control. period, as being the agreement reached in the, ants sought to show, upon cross-examination negotiations. The contract, as thus com- of plaintiff's purchasing agent, Hargate, and pleted, is as follows, the italics showing the also upon its examination of Wallace (treasterms written into the printed form, and the urer of defendant, and in and under the neprovision as to monthly installments is gotiations between them, and by the acts of shown: the parties, it was agreed that the time of delivery of the iron as set forth in the contract was conditioned upon defendant having its plant completed on March 1, 1920. There is much space taken up in the record with the questions tending toward the purpose stated, with objections thereto by plaintiff, and with the rulings of the court thereon. There was discussion as to whether the questions and their purpose was to show by parol a condition or agreement as to the time when the contract itself should become effective, or whether the purpose was to show that the agreement, outside the written terms, was that the time of delivery set forth in the contract was conditional upon completion of the plant, and might be postponed. Upon the questions, and upon the statements of defendant's counsel as to his purpose, too long to set out here in detail, the court held that the evidence which defendant's counsel sought to bring forth was parol evidence, tending to vary the terms of the written contract, and excluded that evidence. That the defendant was seeking by parol evidence to add a new condition to the contract, as to the time of delivery of the iron, and not to show a conditional delivery of the instrument, or a condition as to when it should become a contract, appears reasonably certain from the questions and from the statements of counsel for defendant. We agree with the trial court in the conclusion reached on that point. The written instrument is unconditional and unambiguous in this particular. The negotiations which preceded its execution were merged into it, and consummated by it into an agreement in writing, and the court did not err in excluding the evidence offered of these conversations, had before the execution and delivery of the contracts, the purpose of which was to show that, in addition to the conditions mentioned in the contracts, delivery was further conditioned upon the completion of the plaintiff's plant. Massmann v. Holscher, 49 Mo. 87; Bank v. Bank, 244 Mo. 554, 149 S. W. 495; Beheret v. Myers, 240 Mo. 58, 144 S. W. 824; Bross v. Stancliff, 211 Mo. App. 342, 240 S. W. 1091. "The contract is completely set forth herein. "Scullen Steel Company, The contract, as so conditioned and accepted by plaintiff, was transmitted by letter to defendant, and attention was called to the provision as to monthly installments. The contract declared upon in the second count of the petition, dated November 26, 1919, is the same in form and terms. The defendant's claim that the demurrer should have been sustained is grounded upon the contentions: (1) That plaintiff sued on a special contract; and (2) did not prove the contract sued on; (3) that the evidence shows a waiving of all the terms and conditions except the price, and that the acts, conduct, circumstances, and statements show a modified and entirely new contract; (4) that plaintiff's theory was that time was of the essence of the contract, and there was either a waiver of this or a showing in the evidence that time was not of the essence of the contract; (5) that plaintiff took an undue advantage and undue time in which to speculate on the market price of iron, before undertaking to rescind, not giving defendant a reasonable time in which to perform. The consideration of the general issue raised by the demurrer involves a consideration of certain other issues, either directly or incidentally, the competency of certain evidence, offered or admitted, the construction to be given to the written contract and the claim of waiver, under the acts and declarations of the parties. [3] The plaintiff declared upon the contracts as made, respectively, November 24, and November 26, 1919. The essential defenses offered by the defendant were that the delay arose under conditions provided for in the contracts, and also that there was an extension, or a waiver of the conditions as to time. The first of these issues arose under the terms of the contracts; the second upon other grounds. Unless the defendant sustained the burden of showing a change or a (273 S.W.) by further statement of its expectations or purposes, until in October, 1920. About the 18th of October, 1920, the defendant notified plaintiff by telephone that it had four cars of pig iron. There is some slight variance defendant, that plaintiff declared upon one cause of action and was permitted to recover upon another and different cause cannot be allowed. The cases cited by defendant (Lanitz v. King, 93 Mo. 513, 6 S. W. 263, Cole v. Armour, 154 Mo. 333, 55 S. W. 476, and oth-between plaintiff's agent and defendant's ers) are applicable only where the cause of action proved is different from the one declared upon. The plant of defendant was not completed until May 31, 1920, and during that period no iron was delivered to the plaintiff. The evidence shows that in May, 1920, the agent of plaintiff by telephone was advising the defendant that plaintiff's stock of pig iron was low, and that it wanted the iron from defendant. Like conversations took place in June and July, in which the plaintiff called attention to the fact that its stock of pig iron was low. During this period the explanation of defendant's agent was that coke could not be had of a kind necessary for casting pig iron of the specifications provided for. On August 10, 1920, the plaintiff wrote to defendant a letter as follows: "Under the terms of the contract of November 24th and 26th, you were to ship the 10,000 tons machine cast pig iron in equal monthly installments during March, April, May, and June. You have not shipped any, and therefore are in default as to all of it. Recently you promised to ship some to us during August, and we are willing to accept such belated delivery as in full compliance with the contracts, provided you do ship. We have already been compelled to buy some iron on the market, and we do not want to become overstocked with outside purchases, but we will have to buy more and for your account, if we cannot depend with certainty upon getting the pig iron from you. Please let us know exactly when we may expect delivery, so that we may govern ourselves accordingly." "Your letter of the 10th has been carefully read. Shipments have not been made on account of our contracts with you because of circumstances entirely beyond our control. We intended blowing in the 1st of March, but were prevented from doing so on account of our not being able to obtain the necessary materials to complete the reconstruction of our plant. We were also delayed by labor troubles. When we finally did blow in we experienced considerable trouble with the coke; in fact were unable to make any basic iron of your specifications. At the present time our furnace is banked, awaiting a supply of coke which we expect will produce the various grades of iron for which we have contracts. When our supply of coke which is en route reaches us, we can determine within a very few days just how soon we will be able to begin supplying you with basic." To this letter plaintiff made no reply, nor, according to both Hargate and Wallace, did defendant follow up its letter of August 11th agent in their testimony as to this transaction, but the evidence tends to show that of the four cars, two of them were of iron according to the specifications, and two were not, or, as the witnesses termed it, the iron of these two was "off basic." The plaintiff received these four cars on October 22, 1920, and the iron was accepted at $35 per ton, the price specified in the contract. Plaintiff's witness Hargate testified that the contract was not mentioned, but that the iron was accepted. Hargate testified that shortly after this defendant offered to ship more iron "off basic," which plaintiff did not want and would not accept. Wallace, defendant's treasurer, testified that Hargate, in their talk in October. wanted iron according to specifications, but did not want iron shipped that was not in accordance with specifications, and that he (Wallace) answered that, as soon as they could make it, they would ship it. Wallace testified that about one week later Hargate called him and told him to ship no more iron, that plaintiff would take no more shipments on that contract. About the 5th of November, 1920, Mr. Goltra, president of the defendant company, interviewed the president of plaintiff company, saying to him that plaintiff would like to, resume shipment of iron and was prepared to fill the contract. Defendant's president declined to take the iron, saying they would not need it. Later, on November 15, the defendant wrote to plaintiff a letter, saying that under the contracts deliveries should have been made in March, April, May, and June, and that plaintiffs could not now accept deliveries under those contracts, advising defendant that plaintiff would look to it for settlement for the difference between the contract price and the market price at the dates when delivery was required under the contracts, and suggesting that defendant take up the matter with plaintiff's attorney. To this, defendant's president replied, saying that on the following week he would take up the subject with plaintiff's attorney. [4, 5] The plaintiff and defendant were both manufacturers. The product made by defendant, the subject of this sale, was a material used by the plaintiff in the manufacture of other products. The plaintiff would have engagements, fulfillment of which depended upon its obtaining the commodity which defendant undertook to furnish. The contract was explicit in its statement of the time, and periods of time within which definite amounts should be delivered. Under the terms of the contracts, and the circumstances and purposes under which and for |