CONCURRING OPINION.
FARRINGTON, J.For my purpose the facts are sufficiently stated in the opinions of my associates and need hot again be set forth except as they enter into and form a part of the discussion. It is because a dissenting opinion has been prepared that I desire to support the affirmance of the judgment in a separate opinion.
There are certain duties that courtesy require; certain others that politeness require; and many that are required as moral duties. But in the relations existing between or among individuals, courts cannot enforce judgments and take money from one and give it to another for a breach of any such duties unless the duty in question is one recognized as also a legal duty. With this kept in mind, I think the question for determination is easy of solution.
I shall first consider the cases cited in the dissenting opinion and distinguish them from the case at bar.
The ease of Pierson et al. v. Crooks et al., 115 N. Y. 539, quoted from in the dissenting opinion, discloses on examination that the questions reviewed were entirely different from the question here involved. There, the purchaser received the- goods and was suing to recover from the seller the amount paid together with his damages because of defective quality. The questions raised, as shown on page 546 of the report, were (1) as to where the inspection must take place; *582(2) as to the time within -which a buyer must act; and (3) whether merely receiving was an acceptance.
In our case there is no claim that defendant did not act quickly enough because he did notify plaintiff on the very day that the invoice, and draft .with bill of lading attached reached Springfield, and though he might have gone and looked at the car (probably to inspect as to quality) on the fifteenth of the month, he could not be held to a knowledge that there was 4158 pounds in excess until he received the invoice and bill of lading disclosing that fact.
In the New York ease, supra, the court merely held, and rightly so, that a plaintiff who was a buyer could recover from a defendant who was a seller where the buyer had fulfilled all the duties of a buyer and when the seller had breached his contract.
But here we have a seller who admits that he breached his contract as to quantity, where quantity was a material element in the procuring of the contract ; nevertheless, in the face of that breach on -his part, he as plaintiff asks that he be permitted to make the buyer perform his side of the contract just as though the plaintiff had actually substantially fulfilled his agreement. The very reason why the plaintiff was permitted to recover in the New York case is the one that prevents the plaintiff’s recovery here. Before a plaintiff can recover for a defendant’s breach he must show that he (pláintiff) has performed or tendered a performance.
The question under discussion in the case of Pierce Steam Heating Co. v. Siegel Gas Fixture Co., 60 Mo. App. 148, was as to the necessity of a rejection and the time within which the buyer, must make it.
The defendant in our case certainly acted hastily enough as he sent a telegram to the plaintiff on the first day that the papers came to him advising him of the number of pounds shipped. No one would expect him, between the 15th and 18th of the month, to *583unload the car (which he had no right to do> until he paid the draft) and to weigh the onions and ascertain there was 4158 pounds excess. He had no cause to believe there was more than he ordered until he received the invoice and bill of lading, and, as before stated, on that very day he did give plaintiff this information by telegraph: “Can’t use ear onions.” It is true this telegram was indefinite in some respects, but it was equally certain in another; it was indefinite as to why he could not use the onions, but was very plain in expressing the notice that the car was re-, jected — as much so as if he had wired, “Car rejected.” I find nothing in the authorities, where the quantity tendered is greater or less than called for in the contract, requiring anything more than a rejection, or a refusal to accept. This is sufficient to give the seller an opportunity to minimize the loss — which is the reason some notice of rejection is required. But in our case it is doubtful if plaintiff was entitled to any notice because he already knew that more onions than was contracted for had been shipped, as an invoice had been made up by plaintiff and a. draft drawn by him showing that there were 70 crates or 4158 pounds more than defendant had agreed to buy; hence plaintiff already had sufficient knowledge of one reason for a rejection — which proved to be the real objection.
The case of Sutton v. Risser (Iowa), 74. N. W. 23, and that of Knox v. Schoenthal, 13 N. Y. Supp. 7, are not authorities applicable here, for in those two cases the buyer in rejecting gave one reason which on the trial was abandoned as a defense and another set up in the answer instead, and the holding' correctly sustained the view that the buyer, having given a reason must stand or fall with it, and that having given one was a waiver of all others which would estop the buyer from setting up any other.
A distinction must be borne in-mind between those cases where the goods are received by and are in the *584buyer’s keeping and control and the cases where the goods are never in.the buyer’s possession or keeping or under his control.
The bill of lading in our cáse was accompanied by a sight draft which had to be paid before tlie title or control of the goods ever passed out of the seller. [See Burgess v. Railroad, 176 Mo. App. 257, 161 S. W. 858,]
Another point to be considered in connection with the cases,involving the question before us: Where .the buyer does some act, or in giving some reason for rejection, misleads the seller and causes him to do something or refrain from doing something to protect himself, the buyer may become bound. But in our case there is no showing whatever that “Can’t use car onions ’ ’ misled the plaintiff in the least or caused him to change his course of dealing- to his damage.
The case of Landesman v. Gumersell, 16 Mo. App. 459, cited as an authority for reversing this judgment, is, on the contrary, a very strong authority for affirming it. The cause of action there against the buyer, as shown by the last half of the last page of the opinion, was not to require him to pay damages for refusing* to comply with his contract which the seller had also breached, but liability was put on the ground that in making a mistake in a return of the goods to the seller the buyer had negligently executed a voluntary bailment. If that case is to be considered an authority for reversal in this, what are we to do with the opening statement of that opinion beginning on page 46111t is as follows: ‘ ‘ When the seller in filling an order sends more goods than the buyer has ordered, the buyer is under no legal obligation to accept any part of the goods. [Cases cited.] This seems to be the settled law, and was recognized as such by the trial court in this cause in its instruction to the jury.” And this further statement in that opinion on the same page: “In the case now before us goods in excess of *585those ordered were sent by the plaintiffs — sellers— from Cleveland, Ohio, to the defendants, buyers, in St. Louis, Missouri. There was evidence tending to show that the defendants refused to accept the goods, and immediately notified plaintiffs to that effect. That the defendants might have stopped there, stored the 'goods as bailees for plaintiff; and.could have successfully defended a suit for1 their -value or contract price, seems to be conceded. [Citing cases.]” In that case, the buyer had possession and control of the goods.
In our case, the only way defendant could get possession or control of the onions was to pay the draft, and thus be forced to' execute, on his part, a contract he never made.
It is true that plaintiff wrote a letter in Minneapolis, Minn., dated May 13, 1912, in which defendant was advised that the car shipped would contain 494 crates, but the record does not show when this letter was received by defendant. However, it is but fair to assume that it took this letter the same length of time to reach Springfield as was required for other correspondence in the case mailed from the same place to reach Springfield, which, under the evidence, was some three days in transmission. Therefore, this letter was received by the defendant either on the 16th or 17th — not more than two days before his telegram of rejection was sent. Besides, the letter did not disclose that there were 28,158 pounds of onions in the car, or 4158 pounds more than the contract called for. The order of the plaintiff was for 250 crates of crystal wax onions, “balance yellow,” “lightest mim'mnm car.” There is evidence in the record that the crates vary in weight, and this is known among commission men. It is conceded that a “minimum car” is 24,000 pounds. And while the plaintiff’s letter of May 13, 1912, did advise defendant that there were 494 crates in the car, defendant should not be condemned for not concluding therefrom, immediately on its receipt, that *586the 244 crates of yellow onions would weigh enough to make a substantial excess over a “minimum car,” and could not be held for a delayed rejection until he knew for certain from the invoice and bill of lading that the order had been stuffed. That plaintiff knew all the time from the thirteenth that this car contained an excess cannot be controverted. His agent, Massey, who first went to see defendant (on the 21st or 22d), says that he did not know what the excess was but merely was told by defendant that it was greater than the “minimum car,” the quantity ordered, and had been rejected. Massey then conveyed only the general information by telegraph to the plaintiff without stating to him the amount of excess defendant claimed was in the car, and immediately the plaintiff wired Massey to deduct seventy crates, the excess, and tender de^ fendant the balance — which would leave the minimum carload. The record does not bear out the statement that the car was not weighed. The defendant on cross-examination testified as follows: “Q. You obtained your knowledge there of the car weight from the invoice when it arrived? A. From the railroad company, too. They always weigh these cars when they come in. Q. They told you it was twenty-eight thousand pounds? A. Yes, sir. Q. Don’t you know the Frisco railroad company didn’t weigh that car here? A. I don’t know that. Q. Now what agent told you that car was weighed here? A. The boys in the office there. These cars don’t have to be weighed here. That weight is stamped on the waybill. When I got the invoice showing the number of crates that was in there I knew the weight was wrong. The Frisco told me there was twenty-eight thousand and something and when I got the invoice giving the number of crates, I knew the railroad weight was all right. I always inquired about the weight of a car because sometimes the weights are not right. ’ ’ Again, there was no question raised at the trial as disclosed by the record before *587us that the plaintiff ever denied, or treated the case in any other way than, that there was an excess of seventy crates or 4158 pounds. The second witness placed on the stand by the plaintiff was ashed the following question on direct examination, in getting at what would be the amount of the freight on the excess: “Q. Now I will get you to state, Mr. Robinett, what would be the freight on 4158 pounds of onions from Laredo, Texas, to Springfield, Missouri, in May, 1912, figuring on a minimum late? A. On a car load rate on what? Q. Onions? A. What kind of onions?” —etc.
The rule is thus aptly stated in II Mecbem on Sales, Sec. 1157: “Not only must the article delivered correspond in hind with that agreed upon, but it must also correspond in amount. Where a specific quantity or number is agreed upon, to be delivered at one time, that quantity or number must be delivered, and the seller will not perform his undertaking if he delivers either more or less.” Again (Sec. 1158 Id.): “Where the seller delivers or tenders delivery of a greater quantity than was agreed upon, the buyer may. refuse to receive it and reject the whole.”
In 5 Elliott on Contracts, section 5049, the rule is-stated in this language: “Where the seller delivers a quantity of goods larger than that contracted for, the buyer, in the absence of any controlling usage, special agreement or course of dealing between the parties, may accept the goods included in the contract and reject the rest, or he may reject the whole.”
In the leading case of Barton v. Kane, 17 Wis. 38, 84 Am. Dec. 728, on page 734 the judge writing the opinion malíes the distinction for requirement of the reason of objection where the quality is defective and where the quantity is in excess or less than that contracted for. It is put on the ¡ground that where one knowingly sends more or less goods than ordered he is guilty of intentional violation of his contract *588and Ms conduct savors of bad faitb. It might be added as a reason- requiring the ground of rejection as to quality that often in transit the goods may be damaged and that fact would of course be unknown to the seller.
The case of Norrington v. Wright, 115 U. S. 188, 29 L. Ed. 366, referred to in many textbooks, contains the following excerpts applicable here: “The seller is bound to deliver the quantity stipulated, and had no right either to compel the buyer to accept a less quantity, or to. require him to select part out of a great quantity; and when the goods are to be shipped in certain proportions monthly, the seller’s failure to ship the required quantity in the first month gives the buyer the same right to rescind the whole contract that he would have had if it had been agreed that all the goods should have been delivered at once.” “ ‘The defendants refused to accept the first shipment, because, as they say, it was not a performance, but a breach of the contract. Where parties have made an agreement for themselves, the courts ought not to make another for them. 'Here they say that in the events that have happened one-fourth shall be shipped in each month, and we cannot say that they meant to accept any other quantity. At the outset, the plaintiffs failed to tender the quantity according to the contract; they tendered a much less quantity. The defendants had a right to say that this was no performance of the contract, and they were no more bound to accept the short quantity than if a single delivery had been contracted for. ’ ’ ’ (Italics are ours.)
But plaintiff relies on his offer to reduce the draft and deliver 24,000 pounds. This offer was made some six or seven days after the car reached Springfield and after defendant had rejected the shipment and ordered onions from' another dealer. A sufficient answer to plaintiff’s contention is to say that plaintiff had already done what he claimed was a compliance *589•with the contract on his part — he had made his tender — hut by his offer to change admits there was in the first instance a noncompliance. However, this second offer came after a rejection and after the defendant, acting on such noncompliance and rejection, had placed himself in a different position and bought onions from another dealer. It seems to me that is sufficient to estop plaintiff from saying that his second offer met his obligations under the contract.
If the case is to go off on the “fair dealing theory,” I do not believe it is fair dealing to permit a seller to try his hand at working off something he had not sold, in the face of a falling market, and, when he is detected, come into court and complain because the buyer did not follow him up and make bim comply with his contract; fair dealing, in my judgment, would place that election with the buyer only. Courtesy and politeness might have demanded a more explicit rejection.
It is good law that where more is sent than is contracted for the buyer is to take the amount agreed upon provided he had not changed his position or been put to extra expense, delay or any extra burden. [2 Mechem on Sales, sec. 1158>, p. 1012.] But in the instant case, to take any amount, defendant must pay a draft drawn covering the value of the 4158 pounds not contracted for together with the additional freight charge.- And even on the second offer of the plaintiff the extra expense and the burden of extra freight was not reduced in the offer.
In the absence of anything that defendant did which caused the plaintiff to be misled or to change his position (and there is no such claim made in this case), it seems to me that the vital question we are to determine is, Does plaintiff make such a showing for himself that will entitle him to maintain this action? Did he substantially comply with his contract? If he did not, then his case must fail, even conceding *590that the defendant failed in some duty that he owed. Onr reports are full of eases holding that plaintiffs may maintain actions on contracts where they show a substantial compliance on their part, and there is an equal number holding they cannot recover where they fail to show a substantial compliance.
I do not think anyone will disagree with me in saying that in sending 4158 pounds of onion sets more than was contracted for was a substantial noncompliance, especially when in the course of the correspondence leading up to the contract the plaintiff knew that defendant at first wanted only a small quantity of onions, much less than a minimum carload, but that, on being advised that he would have to pay freight on a minimum carload anyway, he then placed his order to buy the “least minimum car.” The shipment contained 4158 pounds in excess — more than one-sixth of the original order, or seventeen and one-half per cent in excess. The plaintiff’s act brought the house down upon his own head. There is a maxim, based on a principle as effective in law as it operates in equity, whereby equity enjoins that he who comes into equity must come with clean hands; so, on the law side, this principle enjoins that he who contributes to his own injury cannot, complain, or, that he who voluntarily places himself in wrong, will be left there by'the law. Some learned judge has already expressed it in language which to me seems fitting, about like this: The law has no scales with which to determine whose wrongdoing weighed most in the compound that caused the mischief.
I concur in the opinion written by Roberts on, P. J., holding that plaintiff’s admitted breach places him beyond the aid of the law and that the judgment of the trial court should be affirmed.