Appeal from the Circuit Court of Greene County.
The plaintiffs are trustees of a voluntary association of dairymen, and the defendant is a corporation engaged in buying cream. The following agreement was executed by the parties:
"Mountain Grove, Missouri, Mar. 7, 1914. "CONTRACT.
"Ozark Dairy Association, "Strafford, Missouri,
"Gentlemen:
"We agree to pay the following price for your cream for one year, beginning the 1st day of April, 1914, and ending the 1st day of April, 1915. We will pay flat Elgin price F.O.B. Strafford for the entire year for all first grade cream and three cents less for second grade cream.
"Second grade cream is cream testing below 25 per cent individually or testing below 30 per cent on composite test. Also *Page 495 all foamy, old cheesey and dirty cream with bad odor is to be classed as second grade cream.
"All prices to be based on Elgin market, unless the Elgin board should be dissolved, in which case the price to be based on some other market mutually agreed upon by both parties. All payments to be based on your weights and tests. The shortage if over 1 per cent may be deducted by us, when so proved short by our representative at your station on any regular receiving day.
"We further agree to furnish acid, cans for shipping and report sheets, and agree to pay for all cream as soon as possible after receiving report, and also agree to pay three cents per can drayage. All cream is to be bought on Tuesdays and Fridays as far as possible. We further agree if we contract with the organization at any other point at a higher price we will pay you the same.
"MOUNTAIN GROVE CREAMERY CO., "Per H.W. Jensen, Pres. "STRAFFORD DAIRY ASSOCIATION, "By E. BOEGER, "By W.R. HALLOWAY, "By W.B. ROGERS."
The petition, after pleading this agreement, alleged "that in accordance with said contract entered into as aforesaid with the defendant the plaintiffs delivered to defendant a great amount of cream or butter fat, on different dates between the first day of April, 1914, and the first day of June, 1914, and the said defendant received said cream and paid for it in accordance with said contract, to-wit: the prices fixed and paid for like cream at Elgin, Illinois, up to said date; that on June 2, 1914, and long prior to the time for expiration of said contract the defendant repudiated said contract and refused to pay plaintiffs the prices for their cream as by said contract provided and failed and refused to comply with the terms of said contract by paying plaintiffs for their cream the market price for such cream as fixed by the market at Elgin, Illinois, and continued during the remainder of the term and life of said contract to repudiate the same and refused to pay as in said contract provided, but continued to receive and accept during the *Page 496 life of said contract plaintiffs' cream or butter fat, but paid plaintiffs on the same, prices therefor greatly less than the price for such cream fixed by the Elgin market, and paid plaintiffs prices fixed by defendant and not by the Elgin market, and which prices so paid plaintiffs were greatly inferior to the prices agreed upon and specified in said contract and fixed by the Elgin market; that plaintiffs refused to abandon the terms of their said written contract with defendant but fully carried out and fulfilled all their part of said contract and upon the date aforesaid, to-wit: June 2, 1914, or shortly thereafter plaintiffs notified defendant that they would continue during the life and term of said contract to furnish the cream as they by said contract had agreed to do and would expect and demand of defendant to fully comply with its part of said contract, but plaintiffs charge and aver that the defendant has wholly failed to comply with and carry out its part of said contract in this, to-wit: by failing to pay plaintiffs at Strafford, Greene County, Missouri, for their cream or butter fat so sold and delivered by them to defendant, the prices for such butter fat as specified in said contract and fixed by the Elgin market; that between the date of June 2, 1914, aforesaid and April 1, 1915, the date of expiration of said contract plaintiffs sold and delivered to defendant 24,967.6 pounds of butter fat; that the prices paid plaintiffs by defendant therefor was one thousand six hundred forty-three dollars and eleven cents less than plaintiffs should have been paid under the terms of said contract, and the prices fixed by said Elgin market; . . . for which sum, with interest plaintiffs prayed judgment."
The answer, after admitting defendant denied liability on said agreement, was as follows:
"For another and further answer defendant states that for some time prior to and until on or about May 28, 1914, it had been purchasing cream from the Strafford Dairy Association, for which association plaintiffs bring *Page 497 this suit, on the basis of the Elgin, Illinois, cream or butter-fat market, and that said association was represented by one I.A. Webster in the collection and shiping of such cream, the collection of the money paid by defendant therefor, and in the correspondence connected with said business, that on or about said May 28, 1914, defendant notified said Webster and said association that this defendant would no longer purchase cream upon the basis of the Elgin market as it had been purchasing the same, but would put the Strafford Dairy Association upon the same basis as all other stations patronized by defendant, and that defendant would pay after said date for cream at Strafford the same rate that it was paying at other stations and would also pay two cents commission on each pound of butter fat purchased at said station; that thereafter defendant furnished said Strafford Dairy Association with quotations each week as to what it was paying that week for cream at other stations and what it would be willing to pay at Strafford, and all cream mentioned in plaintiffs' petition was furnished in response to said quotations and with the knowledge and understanding that defendant was paying and would only pay the amounts mentioned in said quotations, and was accepted by defendant with the understanding that it was furnished upon the basis of such quotations; that defendant would not have accepted said cream at a higher price than mentioned in said quotations plus said commission; that each week thereafter defendant upon each shipment of cream paid said association upon the basis of said quotations in full for the amount received, and further paid said association two cents commission on each pound of butter fat, and said association accepted the same. Wherefore, defendant says that plaintiffs are not entitled to recover."
The reply traversed the new matter in the answer.
There was no dispute as to the material facts which were, in substance, as follows: *Page 498
The defendant received and paid for all the cream delivered according to the price fixed in said agreement until about June 1, 1914, when defendant notified said association that it would no longer purchase cream under said agreement, but would pay them thereafter the same price it paid others, including two cents per pound of butter fat, for the tester — the person then in plaintiffs' employ who tested the cream. The plaintiffs had theretofore themselves paid said tester one cent per pound of butter fat for his services. Upon receipt of this notice, the association promptly replied that they would not consent to any change in said original agreement, but would continue to supply defendant with cream at the price fixed therein for the time therein specified. But defendant refused to recede from its position and at stated periods sent cards to said association showing the price it would pay for cream thereafter. There was no claim, however, that said association was obligated to further supply defendant cream at any price. After receiving these cards plaintiffs continued to furnish defendant with cream and to insist that they were entitled to the price therefor fixed in said agreement of March 7, which defendant persistently denied and refused to pay, but sent the association checks for the cream it received at the prices named in such cards, including two cents per pound of butter fat for the tester, which the association regularly received and kept, except the two cents for the tester which they paid over to him in full for his services, and no longer considered him in their employ. But all the while the association demanded the price fixed in said agreement. This course of business continued — each maintaining a firm stand by his guns — until the expiration of the year mentioned in said agreement. Thereupon, this suit was brought.
Under instructions given by the court, the jury returned a verdict for the amount sued for, being the difference between the card prices received and the price in said agreement. Among other instructions, the defendant *Page 499 requested a demurrer to the evidence, which was refused.
An appeal was duly lodged in the Springfield Court of Appeals, where the judgment of the circuit court was affirmed. On motion for re-hearing, FARRINGTON, J., asked that the case be certified to this court, because the decision was in conflict with the following cases: Lightfoot v. Hurd Co., 113 Mo. App. 612; Adams v. Helm, 55 Mo. 468; St. Joseph School Board v. Hull;72 Mo. App. 403. The cause was accordingly so certified. The opinions of the Court of Appeals will be found in 209 S.W. 325-331.
I. The first question is, was the said agreement of March 7, 1914, a valid contract or an unilateral agreement which was not binding on either party? On this point all the judges of the Springfield Court of Appeals agreed that it wasUnilateral unilateral and could be receded from by theContract: defendant, except in so far as it became executed,Right to under the ruling of this court in Hudson v. Browning,Terminate. 264 Mo. l.c. 65. In that case, the authorities are collected and reviewed, and it was held, that where one party agreed to buy a certain number of ties at certain prices, but the other party did not bind himself to furnish any particular number, the agreement, so far as it was executory, was not binding upon either party. It is evident the same rule must apply to the agreement between the parties here. The dairy association did not agree to furnish any particular amount of cream and could have gone out of business or refused to supply any and defendant would have been remediless. Consequently, we hold, that said agreement, not binding plaintiffs, was not binding on defendant, and defendant had a right to cease receiving cream thereunder and to so notify plaintiffs, and upon giving such notice, said agreement was at an end. *Page 500
II. We also hold, that there was no evidence that said agreement was ever thereafter renewed or acted on or executed in any way by defendant. While it is true,Unilateral Contract: defendant received cream thereafter, whichRevivor After the association tendered under saidTermination. agreement, yet, defendant at all such times denied that said agreement longer existed, and before plaintiffs supplied such cream notified plaintiffs that it would not pay the agreement price therefor, but only the price shown on the cards sent the plaintiffs. There was therefore neither an express nor implied revivor of said agreement nor recognition thereof in any way by the defendant. But, it is said, that plaintiffs refused to recognize the defendant's right to withdraw from said agreement, and continued to ship cream, which defendant continued to receive, knowing that plaintiffs asserted that said agreement was still binding. But the association's mere assertion after said agreement was no longer binding that it was still binding, did not revive it nor make it binding on defendant. Plaintiffs could not sua sponte keep said agreement alive against defendant. Defendant did nothing, after it notified plaintiff that said agreement would no longer be adhered to, to lead plaintiffs to believe it was still in existence, and that plaintiff could supply cream thereunder and would receive the price therein fixed. On the other hand, defendant continued at all times to insist that said agreement was ended and that it would only pay certain card prices of which defendant notified plaintiffs in advance from time to time before they shipped the cream. Indeed, the petition itself not only admits but distinctly alleges that defendant at all times thereafter repudiated said agreement, that is, refused to take or pay for cream thereunder. There was, therefore, no acceptance of cream under said agreement by defendant, nor execution thereof after it withdrew therefrom. The plaintiffs' case, therefore, fails because they sued for the price contained in said agreement, for which defendant was not liable. *Page 501
The most that can be said is that there never was any agreement or meeting of minds as to the price to be paid after defendant notified said association of its refusal to go on with said original agreement, and if plaintiff had never been paid anything for cream subsequently delivered, it could recover the value thereof, but not any special contract price. So that, defendant's demurrer to the evidence should have been given.
III. Another feature is this — and it is the point upon which the learned appellate judge certified the case here: There was not simply a failure or refusal to pay the price fixed for cream in the agreement of March 7th, but after June 1st, aContract: radical change in another respect was made.Accepting Thereafter, defendant paid the cream tester twoBenefit of cents per pound of butter fat for his services inAlteration. testing the cream in addition to the card price paid the association for the cream, and included this tester's commission in the checks sent the association for the cream. The association regularly received and paid over such commission to said tester as full payment for his services and no longer considered him in their employ. Whereas, while both parties transacted business under said agreement on March 7th, the tester was paid one cent commission per pound by the association and he was considered in their employ. This, in effect, was a radical change in the original agreement, and on the undisputed facts the plaintiffs carried it out — got whatever benefit there was in it by no longer having the tester in their employ and no longer being liable to him for his services. Under such circumstances, it availed the plaintiff naught to protest and insist on the original contract. "Saying they would ne'er consent," they did consent to the change, in so far as the tester was concerned and received whatever advantage accrued to them thereby. Under such circumstances, it is well settled, that plaintiffs were bound by the whole alteration made, whether the original agreement was a binding contract or mere unilateral agreement. *Page 502
"He who accepts a benefit under an instrument must adopt the whole of it, conforming with all its provisions and renouncing every right inconsistent with them, . . . A person cannot accept and reject the same instrument, or having availed himself of it as to part, defeat its provisions in any other part, and this applies to deeds, wills and all other instruments." [Fox v. Windes, 127 Mo. l.c. 511-12; Sage v. Finney, 156 Mo. App. l.c. 42-3.]
V. There was, at least, a bona-fide dispute between the parties, and plaintiffs with full knowledge that defendant was paying to them the card prices andPayment as commission to the tester in full of all itsin Full: Acceptance liability to them for the cream theyUnder furnished, received and kept the money. TheProtest. mere fact that they protested at the time that there was more due did not prevent their acceptance of the money from operating as accord and satisfaction. "If one accepts a payment upon condition that it is to be received in full satisfaction of his claim, his entire claim is satisfied, even though he filed a written protest at the time of accepting the amount paid, notifying the debtor that he would insist on the balance claimed." [Coal Co. v. St. Louis,145 Mo. 651; St. Joseph School Board v. Hull, 72 Mo. App. 403; Lightfoot v. Hurd Co., 113 Mo. App. 612; Adams v. Helm,55 Mo. 468.]
The result is, the judgment of the circuit court is reversed.Brown and Ragland, CC., concur.