author: FARIS, J.

text:
    INTERIOR LINSEED COMPANY v. BECKERMOORE PAINT COMPANY, Appellant.
    Division Two,
    February 16, 1918.
    1. WRITTEN CONTRACT: Extraneous Evidence: Letters. If the written contract is not entirely definite and clear, and free from ambiguity in its meaning and purport, or if its terms are susceptible of more than one meaning, so that reasonable men may fairly and honestly differ in the construction of it, then extrinsic evidence, either written or parol, is admissible to resolve such ambiguity and arrive at the true intention of the parties. If the contract be such, contemporaneous letters, and subsequent letters, written by the parties, in which they express their understanding of the contract, are admissible.
    2. -: Circumstances. The written contract should also be read in the light of the surrounding circumstances, in order the more perfectly to understand and explain the meaning and intent of the parties.
    3. -: -: Prepared by Seller: Contra Proferentem. The fact that the contract of sale and purchase, signed by both parties, is one prepared by the seller, whose agents used his printed form, prepared and kept on hand by him for use in making sales and designed to afford to him the largest possible measure of protection in making such sales, is to be borne in mind in construing the sales contract sued on, and requires that any doubt in its terms be resolved in favor of the buyer.
    4. -: Sales: Date of Delivery: Within Specified Time: Explained by Seller’s Letter. The contract, written by the seller on one of his printed forms, provided that “the seller hereby sells and agrees to deliver and the buyer hereby purchases and agrees to receive 320 barrels ... of linseed oil, for shipment 'in carload quantities as follows, and' within ten days of specified dates: -Barrels, January; -barrels, February; .' . . ;. 320 barrels, October . . . f. o. b. cars or factory, St. Louis . . . Buyer to furnish specifications for shipment in ample time to enable seller to execute order within period or periods named above.” Both seller and buyer had offices in St. Louis, where the contract was made, but the seller kept its main supply of oils in Minneapolis, from which place carload shipments were made. Certain deliveries were made on various dates between October 14th and 20th. On October 20th the buyer ordered one car “for immediate shipment,” and in several conversations within the next few days urged the seller to effect the shipment as quickly as possible. The market price of oil was declining, and on October 31st the buyer wrote the seller that his customer would refuse to receive the car unless delivery was made on that day. It arrived on November 6th, was tendered to the buyer on the 7th, and by him refused, and was sold by the seller, who brings suit for the difference between the price received and the contract price. Held, that by the use of the words "within ten days of specified dates” and then the insertion of the word “October” on the blank line, there was no intention to specify any particular date of delivery, but the natural inference is that delivery was to be made within a period of time, namely, October, and the reasonable interpretation of the contract is that the seller was required to deliver during the month of October, provided the buyer furnished shipping directions in .time to permit the seller to make delivery on or before the end of the month; but the time of shipment is obscurely stated, and therefore a letter written by the seller to the buyer on the same day the contract was drawn, in which he confirmed the werbal sale theretofore made of “320 barrels of linseed oil for delivery in the month of October,’’ was competent, and removed the ambiguity as to date of delivery, and the seller is not entitled to recover.
    5. DATE: October. The word “October,” standing alone, does not connote a date, much less a “specified date,” unless' some other word or phrase is added to show that it was used to mean something which its ordinary use does not imply. Standing alone it implies a period of time. The word “date,” in its legal and in its ordinary sense, imports the day of the month, the month and- the year; it means a given point of time — the point at which something takes place or is appointed to take place.

      Appeal from the St. Louis City Circuit Court. — Hon. Rhodes E. Gave, Judge.
    Reversed.

      J. L. Hornsby for appellant.
    (1) Whilst a written instrument is the consummation of all previous negotiations, and. its meaning, if clear, cannot he subverted or varied by extrinsic evidence, yet if the meaning of the written contract is obscure or ambiguous, it is always competent to receive parol or other testimony in order to explain the obscure or ambiguous language, *by showing the situation of the parties, the surrounding circumstances and the relation which the words of the writing bear to the facts constituting the subject of the contract. Ellis v. Harrison, 104 Mo. 279; Edwards v. Smith, 63 Mo. 126; Black River Co. v. Warner, 93 Mo. 384; Mfg. Co. v. Car Co., 210 Mo. 735; Const. Co. v. Tie Co., 185 Mo. 62; Publishing Co. v. McNichols, 170 Mo. App. 709; Hemholz v. Everingham, 24 Wis. 266. (2) The formal written contract is ambiguous and obscure, and for this reason comes within the rule permitting the introduction of parol or other evidence to explain it. Bouvier, Law Dictionary; Abbot’s Law Dictionary; Pish v. Hubbard, 21 Wend. (N. Y.) 658; Graham v. Hamilton, 27 N. C. 428; 17 Cyc. 664. (3) An ambiguous contract is to be interpreted against the seller. 2 Cyc. 279; Morgan, Legal Maxims; Peloubet, Legal Maxims, p. 16. It is a well-settled rule of construction that words will be construed most strongly against the party who used them, he being responsible for ambiguities in his own expressions. 9 Cyc. 590; 2 Bouvier, Law Diet. (3 Rev.) 2126. (4) The written contract as explained by the letters in evidence must be construed to mean that plaintiff was required to deliver the oil in question to defendant in the month of October.

      Charles A. Powers and Sturdevant & Sturdevant for respondent.
    (1) Every word in the contract in this case has a definite and well understood meaning. No word is used which has a doubtful or double meaning, the interpretation of which can be aided by extraneous evidence. Under such circumstances, evidence outside of the contract to explain the meaning of words used therein, is improper. The court should not consider conversations had, or letters written by the parties in interest before or after the execution of the contract, in which the parties attempted to construe the meaning of the contract or, of its terms. Where the meaning of the terms used is clear, the opinion of the parties as to the meaning of the contr#ct, is irrelevant. 9 Cyc. 590. (2) When goods are contracted for shipment in carload quantities, the word “shipment” is used to express the idea of goods delivered to the carrier for the purpose of being transported from one. place to another, and the agreement for “shipment” is that the shipper will place on board the carrier the goods to be transported. 35 Cyc. 2016; 25 Am. & Eng. Ency. Law, p. 852 note 4; 7 Words & Phrases (1 S.), pp. 6487, 6489; Century Dictionary, “Shipment;” Webster’s New International “Shipment;” Webster’s New International, “Ship.” (3) The general rule is, that, wherever the parties oblige themselves to the performance of duties within a certain number of days, they have until the last minute of the last day to perform their obligation. Cousins v. Bowling, 100 Mo. App. 456; 35 Cyc. 177. (4) Where a buyer contracts for the shipment of goods by carrier, delivery of the goods by the shipper to the carrier ordinarily constitutes delivery. There being nothing in the contract to the contrary, the place of delivery is the place where the goods are, when sold. In such case, the point of shipment being the place of delivery, shipment and delivery are for all practical purposes the same.' And the fact that under the contract freight was allowed to St. Louis, the clause being used in connection with the words fixing the price only does not affect the rule. State v. Eosenberger, 212 .Mo. 654, 657; 35 Cyc. 172, 193; Sharff v. Meyer, 133 Mo. 445, 447 ; 24 Am. & Eng. Ency. Law, pp. 1069, 1071; Cultivator Co. v. Eailway, 64 Mo. App. 311 (4) The contract should be interpreted without recourse to any evidence outside its own contents. The court, however, to aid in such constructions, should look at the contract in the light of the purposes for which the contract was drawn, the conditions and circumstances surrounding the parties, their methods of doing business and the character of their businesses, and their relations to each other. In other words, the court should attempt to place itself in the position of the parties at the time when the contract was drawn, with a view of- all the circumstances then existing. The construction of the contract is then strictly for the court. Donovan v. Boeck, 217 Mo. 87; Construction Co. v. Tie Co., 185 Mo. 61; Construction Co. v. Hayes, 191 Mo. 294; Meyer v. Christopher, 176 Mo. 594; 35 Cyc. 96.
   FARIS, J.

Plaintiff sued defendant for damages for an alleged breach of a written contract for the sale of linseed oil. On the trial nisi, before the court without a jury, plaintiff had judgment for $1523.42, and defendant duly appealed to the St. Louis Court of Appeals. Upon a hearing in the latter - court the judgment of the circuit court was affirmed in an opinion by Nortoni, J., in which Eeynolds, P. J., concurred. To the affirmance of the case Allen, J., was constrained to dissent, and to set forth his reasons therefor in an exhaustive opinion (Interior Linseed Co. v. Becker-Moore Paint Co., 190 Mo. App. 1); and since he deemed the opinion held by a majority of the judges of the St. Louis Court of Appeals to be in conflict with the rule announced by this court in thei cases of Laclede Construction Co. v. Moss Tie Co., 185 Mo. 25, and Ellis v. Harrison, 104 Mo. 270, he asked that the case be certified up to us for decision, which was accordingly done. Hence our jurisdiction.

We have with' much interest gone over both of the able opinions filed in this case by Judges Noktoni and Allen, and after a careful reading of these opinions, and of the record in the case, we* are constrained to adopt the views held in the case by Judge Allen. His opinion states fully both the law and the facts of the ease, and we find ourselves unable to add to what Judge Allen has written, any views which would be at all illuminating. Accordingly we adopt the dissenting opinion of Judge Alien, as our opinion, and as the law which ought to apply to the facts of this case. Ofrhis opinion runs thus:

“On October 14, 1911, defendant, by telephone, ordered of plaintiff 320 barrels of linseed oil. Defendant accepted the order and on the same day confirmed the sale to plaintiff by the following letter:
“We are pleased to confirm verbal sale made to you to-day of 320 barrels strictly pure linseed oil for delivery in month of October at eighty-two cents per gallon f. o. b. your warehouse or factory, St. Louis, Missouri, basis raw on cooperage. Tank car delivery two and one-half cents less. Tank wagon delivery two cents less than cooperage.
“Thanking you for your valued order we beg to remain.
“Plaintiff and defendant are both corporations with offices in the city of St. Louis, though it appears that plaintiff kept its main supply of oil at Minneapolis, Minnesota, from which place car shpments were made. After writing the above letter, and evidently on the same day, plaintiff mailed to defendant the contract sued upon, which was signed by defendant through its president and returned by mail to plaintiff. According to the testimony of plaintiff’s manager, who represented it throughout the transaction and signed the contract for it, no communications were had with defendant in reference to the sale between the time of the writing of the above letter and the execution of the formal contract. This contract consists of a printed form with certain blank spaces filled in by typewriting. The contract in full is as follows, the typewritten parts thereof appearing in italics, viz.:
“CONTRACT, Made at St. Louis, Mo. this 14 day of October, 1911 between INTERIOR LINSEED COMPANY of St. Louis, Mo., hereinafter called the seller, and The Becker-Moore Paint Go. of St. Louis, Mo., hereinafter called the buyer.
“The seller hereby sells and agrees to deliver and the buyer hereby purchases and agrees to receive 320 barrels containing about 50 gallons each (7y2 pounds in a gallon) of pure linseed oil, for shipment in carload quantities as follows, and within ten days of specified dates:
-Bbls. January. -Bbls. June. 320 Bbls. October.
■ — - Bbls. February. -Bbls. May. —-Bbls. September.
- Bbls. March. -Bbls. August. --Bbls. December
--Bbls. April. -Bbls. July. -Bbls. November.
“Tank wagon two cents less and tank car two and one-half cents less than cooperage raw linseed oil at eighty-two cents, boiled linseed oil at eighty-three cents per gallon, f. o. b. cars or buyer's factory, St. Louis, Mo. freight allowed to St. Louis, Mo. Buyer to furnish specifications for shipment in ample time to enable seller to execute order within the period or periods named above. In absence of specifications a carrying charge is to accrue of one-half cent per gallon per month or any part of the month, as long as seller shall be willing to carry the same.
“Failure to deliver any installment of oil shall not be breach hereof as to other installments.
“Terms: Net cash in thirty days from date of invoice; or, if payment is made in ten days from date of invoice, a discount of one per cent will be allowed.
“In case of default in payment o^ any installment or purchase money when due, the whole sum owing by the buyer shall become due at once, and further deliveries shall be made only for cash.
“Delay of seller caused by fire, differences with workmen or inevitable accidents excepted.
“Orders for tank cars to be filled by capacity of car convenient to ship with minimum of about 5,000 gallons and maximum of about 10,000 gallons. Minnesota State weights to govern.
“Over or under shipment of contract necessitated by car capacity is to be settled at market price on date of last car shipped.
“Special oils at seller’s usual difference. The whole contract is stated herein.
Accepted: The Becker-Moore Paint Co., Interior Linseed Co.,
“W. E. Becker, Prest. By J. R. Ginn, Mgr.
“Certain portions of the oil thus sold were delivered, in various amounts, in tank wagons or ‘cooperage’ at various dates after October 14th and prior to October 20, 1911. On the last mentioned date defendant wrote plaintiff as follows:
"Please enter our order for immediate shipment for one tank car, .capacity about ten thousand (10,000) gallons raw linseed oil, routing same to us care of the Terminal Railroad Association, 16th Street Yards, St. Louis, Mo.
“This shipment to be applied against our contract for October delivery.
"Kindly acknowledge receipt, advising about how soon we can expect shipment, obliging.
“On the same day plaintiff acknowledged receipt of this order by the following letter, viz.:
“We have your kind favor of this date ordering 10,000 gallons tank car of,Raw Linseed Oil, for shipment, care Terminal R. R. Association, St. Louis, Mo. To be applied against your October contract. This will go forward to our factory Minneapolis, Minn., where it will have immediate attention.
‘ ‘ The evidence is that the president of defendant company had several conversations with plaintiff’s manager subsequent to October 20th, and commencing perhaps three or four days thereafter, urging plaintiff to effect delivery of this tank ear of oil as -quickly as possible. It appears that defendant had resold the oil, and that its purchaser was urging delivery; and that defendant was anxious to make delivery because of the fact that the market had begun to decline. And the evidence is that the market price continued to steadily decline until November 1st, and thereafter. It is said that defendant’s president received no satisfaction as to when delivery would be made. On October 31st defendant wrote plaintiff that defendant’s customer would refuse to receive the tank car of oil unless delivery was made on that day, saying: ‘You will consequently govern yourself accordingly in your delivery to us. You will note in referring to the date of our order for this tank car that we gave you the required ten days’ notice as provided in your contract forms.’
“The tank car of oil was not shipped from Minneapolis until October 30th. It appears that it reached St. Louis in November 6th, and was tendered to defendant on the following day, to-wit, November 7, 1911. Defendant refused to accept it; and, after notice to defendant, plaintiff sold the oil for the best price obtainable therefor, to-wit, $6868.40, being $1392.61 less than the contract price, and brought this suit to recover the loss thus entailed, together with certain demurrage and switching charges.
“The crucial question involved is whether the foregoing written contract executed by the parties is free from any uncertainty or ambiguity in its terms, so as to preclude the consideration of extrinsic evidence as an aid to the construction thereof and to ascertain the true intent of the parties. The learned trial judge, in an option filed, which for the most part is adopted by my Brother Nobtoni, held that the writing was altogether clear and definite, and that extrinsic evidence, though consisting in part of plaintiff’s letter written at the time of the transaction, could not be looked to in construing its terms. The cause was tried before the court without a jury, and though the aforesaid letters, as well as oral testimony relative to the transaction, were admitted in evidence, the court in deciding the case excluded all of the same from consideration. I am persuaded, however, that the learned trial judge, for whose opinion I have great respect, erred in so doing.
“The pertinent question is: Can this contract be said to be entirely definite and clear, and free from any ambiguity in its meaning and purport? If its terms are susceptible of more than one meaning, so that reasonable men may fairly and honestly differ in the construction thereof, then extrinsic evidence, either written or parol, is admissible to resolve such ambiguity in order to arrive at the true intention of the parties. A rule of interpretation, equally well settled, is that the writing should be read in the light of the surrounding circumstances in order the more perfectly to understand and explain the intent and meaning of the parties [Laclede Construction Co. v. Moss Tie Co., 185 Mo. l. c. 62, 84 S. W. 76; Williams v. Railroad, 153 Mo. l. c. 534, 54 S. W. 689; Pulitzer Pub. Co. v. McNichols, 170 Mo. App. 709, 153 S. W. 562.]
“ ‘ "Tlie object of interpretation always is, or should be, to reach the actual intention of the parties. We mean, of course, that intention as expressed in the writing they employ to portray it, and consistent with the latter. When the subject-matter to which such a writing refers is not entirely definite and clear, it is permissible, and obviously just, to receive in evidence a description of the circumstances of its execution that the court may be placed, as near as may be, in the situation of the contracting parties with a view the better to adjudge, in what sense the language used was probably intended by them. [Swett v. Shumway, 102 Mass. 365; Keller v. Webb, 125 Mass. 88.]” "Putting a construction upon a document means ascertaining the meaning of the signs or words made upon it, and their relation to facts. ... In order to ascertain the relation of the words of a document to facts, every fact may be proved to which it refers, or may haye been intended to refer, or which identifies any person or thing mentioned in it.” ’ [Laclede Construction Co. v. Moss Tie Co., supra, l. c. 62; Coffman v. Saline Valley R. R. Co., 183 Mo. App. 622; Morey v. Feltz, 187 Mo. App. 650.]
"In the case before us, if one were forced to construe the written contract by an inspection of its terms, without the aid of the evidence excluded from consideration, it appears that the reasonable construction thereof would be quite different from that- placed upon it below. The contract provides that the seller sells and agrees to deliver, and the buyer purchases and agrees to receive, 320 barrels of linseed oil, ‘for shipment in carload quantities as follows, and within ten days of specified dates: ’ Then follow the months of the year-arranged so that the number of barrels of oil to be delivered in one or more thereof may be designated. In front of ‘October’ the figures 320 are inserted. Prices are then stated, followed by the expression, ‘f. o. b. ears or buyer’s factory, St. Louis, Missouri.’ A further provision is: ‘Buyer to furnish specifications for shipment in ample time' to enable seller to execute order within the period or periods named above. ’
“The construction placed upon the contract below is that ‘October’ is to be taken as a specified date, within the meaning of the preceding phrase, ‘within ten days of specified dates;’ and that therefore plaintiff, by the term of the contract, had all of the remainder of October and the first ten days of November, 1911, in which to make delivery of any of the oil so sold. I do not agree that this is a reasonable interpretation of the contract. In construing its terms it is to be borne in mind that the instrument is one prepared by the seller, whose agents used its printed form prepared and kept on hand by the seller for use upon such occasions, and evidently designed to afford it the largest possible measure of protection in making any such sale. The doctrine of contra proferentem therefore applies with much force, and simple justice demands that any doubt in the terms of the instrument be resolved in favor of the buyer.
“The position of the phrase ‘within ten days of specified dates,’ is to be noted. I do not agree with the learned trial judge that the language used is necessarily to be given the same meaning as though it were ‘within ten days of specified dates as follows, to-wit:’ The form of 'expression here employed lends support to the view that the words ‘within ten days of specified dates’ were intended to have application only in the event that specific dates for making delivery were in fact inserted below in the printed form, and not a period or periods within which deliveries were to be made. The' language preceding this phrase is complete to the effect that a sale of a certain quantity of oil has been made ‘as follows. ’ i. e., at prices and to be delivered as below indicated. The succeeding words, ‘and within ten days of specified dates, ’ appear to have been put into the printed form to allow a margin of ten days for delivery in case any precise date be inserted in the blanks below — it being recognized that such specific dates might or might not be inserted. Hence the language is not ‘the following specified dates,’ or ‘specified dates as follows.’ In other words, the reasonable interpretation of this language, found in such a printed form, seems to be that the seller agrees to deliver within guch period or periods as might be designated below in the columns of months; but if in fact in making a sale any specific date is inserted, then the seller does not agree to deliver on such precise date, but within ten days thereof.
“In the instant case it seems altogether clear that .no ‘specific dates’ were inserted to which the phrase in question could apply. The month ‘ October, ’ standing alone, cannot be taken as a date, much less a specified date, unless something appears to show that the word was used to mean something which its ordinary use does not imply. A date is ‘the point of time at which a transaction takes place or is appointed to take place; a given point of time.’ ‘Date’ means the same in its legal as in its ordinary sense, and imports the day of the month, the month and the year; the day of the month being as essential a part of the date as the month or the year. [See Heffner v. Heffner, 48 La. Ann. 1088; Succession of Robertson, 49 La. Ann. 868, 62 Am. St. 672; 2 Words and Phrases, 1830.] By ‘October,’ is evidently meant what then remained of October, 1911. But this is in no sense a specified date, but a period of time. The natural inference is, I think, that there was here no intention to specify any particular date or dates of delivery, but that delivery was to be made within the period named. And later in the contract reference is made to ‘the period or periods named above. ’
“The .words ‘specified dates’ are thus to be regarded not as meaning that dates, as such, are necessarily mentioned or ‘specified’ below, but as being-equivalent to the words ‘such specific dates as may be below mentioned.’
“Is it reasonable to suppose that there would be any necessity for providing for an additional period of ten days for delivery, where the contract provides for delivery within a certain named period? If the understanding and agreement is that delivery is to be made within a certain period, why should not that period be stated without more? Surely the seller would have no occasion, in good faith, to make provision in its printed form against making delivery within such period as might be plainly stated in the contract, and where the entire length of the period agreed upon may be named. It is quite different, hov ever, if specific dates for deliveries are inserted in the printed form. The seller’s main supply of oil was at Minneapolis, though it kept on hand a supply in St. Louis; and it might or might not be found practicable to deliver any particular amount on a precise day named, and hence the safeguard of a ten days’ clause would be reasonably necessary for the seller’s protection.
“This seems to me to be the reasonable construction to be placed upon this vital part of the contract. It ascribes meaning and intendment to all of the language thereof. It is in no way inconsistent with the subsequent clause providing as follows: ‘Buyer to furnish' specifications for shipment in ample time to enable seller to' execute order within the period or periods named above.’ This view of the contract merely means that the seller was here required to deliver during the month of October, 1911, provided that the buyer furnished shipping directions in time to permit the seller to make delivery on or before the end of the month. It cannot be doubted that ample time was given plaintiff in which to make delivery in October. The order for the immediate shipment of this tank car was placed on October 20th; and the facts show that this afforded ample time for shipment thereof from Minneapolis for delivery during October. In fact the car was shipped in much less time when the seller saw fit to start it on its journey.
“It was contended by appellant below that the ten days’ clause meant that the buyer was to give specifications for shipment ten days before delivery could be demanded. It appeared from appellant’s letter of October 31, 1911, that it so viewed the contract; and this-theory was put forward at the trial below. The trial court said, however, as to which I agree, that this would . give no effect to the later clause making special provision as to specifications for shipment, i. e., that shipping directions were to be furnished in ample time— whatever this might be — to enable the seller to execute the.order within the period or periods named. I am satisfied that the contract does not bear the interpretation thus sought to be put upon it, but I think that the reasonable construction of its terms is as above indicated.' The trial court’s construction makes ‘October’ a specified date; whereas in fact it is not a date, but a period of time. Such construction, permitting the seller to acquit its obligation by delivery any time within ten days after the end of October, i. e., by November TO, has the effect of reading into the contract ‘October 31st’ in place of ‘October.’ The natural meaning of ‘320 ’ ’ October’ (the ditto marks meaning barrels) is that 320 barrels are to be delivered in October— qualified by the ‘ample time’ clause which follows.
“Some stress is laid upon the fact that unless ‘October’ is to be taken as a specified date then no such date appears to which the term ‘within ten days of specified dates’ could have reference, and effect is therefore not given to this provision of the contract. But the rule that the whole contract should be construed so as to give meaning and effect, if possible, to all parts thereof, is not here applicable in the same way and to the same extent as it would be were the contract one specially drawn to cover this particular sale. Where a printed form is used, as here, many words may be contained therein which do not apply to the particular transaction. Other words are to be found in this instrument which are not utilized in attempting to express the terms of this contract. In such cases it is not so essential that effect be given to every word of the printed form as it is to account for the presence of such words therein, as having a meaning in the connection in which they are used. In the view herein taken of this instrument the presence of the ten days provision is accounted for, and meaning-given to it, though it is regarded as not intended to apply to this particular transaction, since a period of time, and not any specified date, was named.
“The argument is advanced by respondent that the contract merely calls for shipment within whatever may be the time specified, and not for delivery within such time. But there is little, if any, room for this argument, for the contract provides for delivery ‘f. o. b. cars, or buyer’s factory, St. Louis, Missouri.’
“Though the construction above placed upon the formal contract appears to me to be the most natural and reasonable interpretation of its terms, it cannot he doubted, I think, that the time for delivery is obscurely stated and the contract ambiguous in this respect; And under the circumstances I cannot understand why any court should feel itself compelled to close its eyes to the truth when it is at hand. Whatever ambiguity there may he in the contract, when read alone, at once disappears in the light of the extrinsic evidence adduced to explain it. The letter written by plaintiff on the very day on which the contract is dated shows in unmistakable terms what was the intention of the parties. It confirms the verbal sale to plaintiff, previously made on the same day, of 320 barrels of linseed oil, ‘for delivery in month of October . . . f.’o. b. your (defendant’s) warehouse or factory, St. Louis, Mo.’ There can be no doubt as to the meaning of this language. And, as stated above, the formal contract was executed almost immediately thereafter, with no communications between the parties in the meantime; and it must be presumed that the contract sought to express the true terms of the sale. The later letters passing between the parties tend to confirm this for they refer to defendant’s ‘contract for October delivery, ’ and to its ‘ October contract. ’ It cannot be imagined that a sale for delivery in October, or even the expression ‘October delivery’ could mean that the seller had not only all of the remainder of October but one-third of November as well in which to deliver the goods.
“The rule for excluding evidence in cases of this character proceeds upon the theory that, ■ where the writing is entirely definite and clear, to permit either party to show that the intention was other than as there-.' in expressed would tend to destroy the value of written contracts. But in my judgment the rule has here no application, but the case appears to clearly fall within the rule authorizing the admission and consideration of extrinsic evidence. Surely this contract, upon a printed form furnished by the seller, which is a strange jumble of words and phrases, wherein,a vital element of the contract is vaguely expressed by ‘320 ’ ’ October’ is by no means entirely definite and clear. For reasons mentioned above, it is to be construed most strongly against the seller, any doubt being resolved in the buyer’s favor., I am firmly convinced that a rational construction to bo placed upon it is one contrary to plaintiff’s contention and which would defeat plaintiff’s recovery. On the other hand when once light is shed upon it by the evidence excluded from consideration below, no doubt remains as to the meaning of its terms; for it is then made to appear beyond question that the intention was to provide for delivery at St. Louis within the month of October. Such is the solemn written admission of plaintiff as to the terms of the sale, made at the very time when the transaction took place. And it is a case in which time is of the essence of the contract. It was tried upon that theory below; and manifestly correctly so, for the commodity was one dealt in upon the market and in the price of which a brief period of 'time may make great difference. And it appears that the market price was declining during the latter part of • October and thereafter.
“The contemporaneous written declaration and admission of plaintiff in its letter affords altogether satisfactory proof of the intention of the parties. ‘If evidence of surrounding facts and circumstances is admitted to explain the sense in which the words were used, certainly proof of the declarations of the parties, made at the time of their understanding of them, ought not to be excluded. Such declarations, if satisfactorily established, would seem to be stronger and more conelusive evidence of the intention of the parties than proof of facts and circumstances, since they come more nearly to direct evidence than any to be obtained, whilst the other is but circumstantial.’ [Laclede Construction Co. v. Moss Tie Co., supra, l. c. 68.]
“In this view it was plaintiff, and not defendant, that breached the contract. And to permit plaintiff to recover upon the theory that the extrinsic evidence aforesaid may not be looked to, would, in my judgment, have the effect in law of perpetrating a fraud upon the defendant.
“I am therefore of the opinion that plaintiff is not entitled to recover, and that the judgment should be reversed. ’ ’

Without more, we are, we repeat, constrained to agree with the language and conclusions of Judge Allen, and to hold (a) that the contract was so lacking in definiteness, certainty, and clarity, as to make of it one permitting explication through the aid of the extraneous circumstances (Laclede Construction Co. v. Moss Tie Co., 85 Mo. 25; Ellis v. Harrison, 104 Mo. 270); and (b) that when so construed, the contract was clearly one which required the delivery of the oil in the month of October, and therefore one on which, since plaintiff breached it, no recovery can be had.

These extraneous circumstances consist in all pertinent matters of certain letters which passed between the plaintiff and the defendant. Three of these letters are set out in full by Judge Allen, and upon one of them he comments, quoting therefrom an admission by plaintiff, which in his view shows conclusively that the sale was for October delivery. While, as stated, the other two letters are set out in full in the opinion, no comment or argument is based upon them. The first of these letters bears date October 20, 1911, was written by defendant to plaintiff, and requested the “immediate shipment’’ of one tank car of oil “to be applied against our contract for October delivery.’’ Replying to the above-mentioned letter, by a letter of the same date, plaintiff promised that “immediate attention” would be given to making tlie required shipment, which was “to be applied against-your (defendant’s) October contract.” When this contract is read in the light of these extraneous facts, and of those so ably pointed out in Judge Allen’s opinion, we think no other conclusion can be reached, except the one Judge Allen has reached.

It follows that the case should be reversed, without remanding. Let this be done.

All concur.


source: Caselaw Access Project

author: WILLIAMS, J. WALKER, P. J.

license: Public Domain

text:
    JOHN McMENAMY et al., Executors of Last Will of GEORGE KAUFHOLD, v. MATHIAS KEMPELMANN et al., Appellants.
    Division Two,
    February 16, 1918.
    1. APPEAL: From Order Granting New Trial: Appellate Procedure. If the trial court erroneously granted a new trial, the order granting the same should be reversed, and the cause remanded with directions to the trial court to enter judgment according to the original decree. If, on the other hand, the court did not err in granting a new trial, the proper practice (even in equity suits) is to affirm the order granting the new trial and remand the . cause for a re-trial.
    2. WILL: Legacy to Relatives: Does Not Include Wife’s Relatives. Unless the will discloses a plain purpose to the contrary, the term “relatives” when used therein to designate legatees does not prima-facie refer to husband, wife or marriage connections, but only to the maker’s own blood kindred.
    3. -:--: -: This Case. The testator’s will made gifts to his daughters, nephews, brothers and nieces, some of whom resided in Germany, and to his deceased wife’s brother, nephews and nieces and to the wives of some of them, in definite amounts of money, and then said: “If there be any residue left over of my estate after all debts and legacies are settled by the executors of this will, I direct that same be divided amongst all immediate relatives herein named proportionally as to the amounts hereinbefore given, but limited to those relatives in the United States of America.” Held, that the will does not disclose a plain purpose to include his wife’s relatives among the “immediate relatives” to whom the residue was to be divided, and they cannot therefore share in it. ■

      Held, by WALKER, P. J., concurring, that the word “relatives” used in the said residuary clause, when read in connection with the express bequests made in other parts of the will, strongly points to the conclusion that the word was used in its generic rather than in its technical sense, and that the testator intended to include both classes of relatives; but the rule seems to be that language more specific than that employed in this clause is necessary to broaden the word to include others than “those who, by virtue of the Statute of Distributions, would take property as next of kin.”
    Appeal from St. Louis City Circuit Court. — Hon. James E. Withrow, Judge.
    Appirmed and remanded.

      Otto F. Karbe, S. C. Rogers, Frank Landwehr and F. X, Hiemenz for appellants.
    The court erred in sustaining the motion for a new trial, (a) Because the will itself is sufficiently plain on its face. as not to require any extrinsic or explanatory evidence. Kingman v. Winchell, 20 S. W. 296; McQueen v. Lillv, 131 Mo. 17; Meiners v. Meiners, 379 Mo. 614; 40 Cyc. 1431, 1433, 1436. . The rule for construction of wills is provided in Sec. 583, R. S. 1909, and a construction of this statute can he found at length in; Cox v. Jones, 229 Mo. 62; Settle v. Schafer, 229 Mo. 568; Griffith v. Witten, 252 Mo. 641; Tevis v. Tevis, 259 Mo. 34; Threckeld v. Threckeld, 238 Mo. 465; Armour v. Frey, 226 Mo. 666; Thomas v. Thomas, 149 Mo. 435; Noe v. Kern, 93 Mo. 373; Suydan v. Thayer, 94 Mo. 49; Munro v. Collins, 95 Mo. 33; Grace v. Perry, 397 Mo. 559; Board of Trustees v. May, 201 Mo. 369; Stewart v. Jones, 219 Mo. 639; Cornet v. Cornet, 248 Mo. 215; Burnett v. Burnett, 244 Mo. 491; 40 Cyc. 1439. (b) Because a will must be construed from the standpoint of 'the testator and technical rules must yield to obvious intent of the testator. O’Day v. O’Day, 193 Mo. 87; Gross v. Hoch, 149 Mo. 325; Small v. Field, 302 Mo. 122; Roberts v. Crurno, 173 Mo. 579; Hurst v. Von De Veld, 158 Mo. 248; Willard v. Darrah, 168 Mo. 667; Buckner v. Buckner, 255 Mo. 375; Seibert v. Platcher, 205 Mo. 89; Warne v. Sorge, 258 Mo. 167; Grace v. Perry, 197 Mo. 559; Mead v. Jennings, 46 Mo. 93; In re Holmes, 1 Drew, 321; Landon v. Moore, 45 Conn. 422; Thurber v. Chambers, 66 N. Y. 42.

      Marshall & Henderson and William McNamee for respondents.
    '’The plaintiffs contend that the testator by the nse of the words “immediate relatives” in the residuary clause of his will meant his blood kin. (1) The terms .relatives, relation, kinsman, have a definite meaning-in the law. A “relative” is a person connected by blood or affinity; strictly, one allied by blood; a relation; a kinsman or kinswoman. Webster’s International Dictionary. A relative or relation is, “in construction of wills, one connected with the testator by blood; a blood relation; next of kin.” 34 Cyc. 1037; Elliot v. Fessenden, 83 Me. 205; Kenniston v. Adams, 80 Me. 294; Drew v. Wakefield, 54 Me. 298; Thompson v. Thornton, 197 Mass. 276; Snow v. Durgin, 70 N. H. 122; Gallagher v. Croaks, 132 N. Y. 343; McNeilledge v. Barclay, 11 Serg. & R. (Pa.) 106-; Com v. Matz, 17 Pa. Co. Ct. 543; Hibbert v. Hibbert, L. R. 15 Eq. 375; Green v. Howard, 1 Bro. Ch. 33; Pope v. Whitcombe, 3 Merio, 689; Smith v. Campbell, 19 Ves. Jr., 403. In connection'with wills and statutes relating thereto the terms have been held not to include marriage connections. Bramell v. Adams, 14-6 Mo. 89; In re Pfuelb, 48 Cal. 644; Staff v. McGinn, 178 111. 46-53; Horton v. Earle, 162 Mass. 450; Kimball v. Story, 108 Mass. 385; Bennett v. Van Riper, 47 N. J. Eq. 565; Supreme Council, Etc., v. Bennett, 47 N. J. Eq. 43; Cleaver v. Cleaver, 36 Wis. 100; 2 Woerner’s Law of Admn., p. 939. “Relations,” according to 2 Bouvier’s Law Dictionary, 864, is “a term which, in its widest sense, includes all the kindred of the person spoken of.” (e) It has long been settled that in the construction of wills it includes those persons who are entitled as next of kin under the Statute of Distributions. 2 Jarm. Wills, 661; 54 Me. 291; 132 N. Y. 338. In the interpretation of a statute, the term was held not to include a stepson (108 Mass. 382), or a wife (101 Mass. 36; 10 Wash. 533), or a brother-in-law (162 Mass. 448). A legacy to “relations” generally, or to “relations by blood or marriage” without enumerating any of them will, therefore, entitle to a share such of the testator’s relatives as would be entitled 'under the Statute of Distributions in the event of intestacy (1 Dodd, 45; 1 Bro. C. O. 33). The same rule extends to devises of real estate (1 Taunt. 263). (2) The testator did not intend that his wife’s relations should share equally with his blood kin in the residuum. The specific legacies exclude any such idea. The oral testimony shows affirmatively and without contradiction that the testator told one of the executors (Mr. McMenamy) that he did not want his wife’s relatives to share in the residuum and was advised by such executor that the twenty-ninth clause of the will would not give them such a right.
   WILLIAMS, J.

This is a suit in equity whereby the executors of the will of George Eaufhold, deceased, seek to have said will, and more particularly paragraph 29 (the residuary clause) thereof, construed.

Trial was had in the circuit court of the City of St. Louis, which resulted in a decree construing said clause to include within its provisions the legatees who were the blood relatives of the deceased wife of the testator, as well as the legatees, residing within the United States, who were the blood relatives of the testator.

Thereupon motions for a new trial were filed on behalf of the executors and some of the legatees who were the blood relatives of the testator.

The several motions for a new trial were sustained and thereupon the legatees, who were the relatives of the deceased wife of the testator, duly appealed from the order granting a new trial. It is contended by all the parties that the amount in dispute is more than $7500 and therefore sufficient to confer jurisdiction of the appeal here.

In order that the clause sought to be construed may be seen in its true setting it is necessary that the will be copied herein. We have underscored paragraph 29, the one to be construed. The will is as follows:

“St. Louis, Mo., April 26, 1904.
“In the name of God, Amen.
.“I George Kaufhold of the city of St. Louis and State of Missouri being of sound and disposing mind do make, publish and declare this to be my last will and testament.
“My estate consists of the following real estate, namely: Being the eastern fifty-five feet seven and one-sixth inches more or less, of Lot Three and all of Lot Four in Block Five of D. D. Page’s Western Addition, in City Block 1860, of the said city of St. Louis, State of Missouri, having an aggregate front of one hundred and sixty-six feet nine and one-sixth inches more or less on the north line of Easton Avenue, and a depth of one hundred and eighty-nine feet ten inches on the west side of Francis Street, and one hundred and fifty feet more or less on the south side of Evans Avenue, and bounded as follows to-wit: On the north by Evans Avenue, on the east by Francis Street, on the south by Easton Avenue and on the west by property now or formerly of C. S. Luttercord.
“I own personal property, .viz: Forty-seven and one-half shares of stock in the German American Literary Society, and also one share in the Herald of Religious Belief (a newspaper), also twenty-one shares in the St. Louis Vitrified Fire Brick Company of St. Louis, Missouri.
“First: I direct that all my just debts, if any I have at the time of my decease, shall be paid by my executors.
“Second: I do make, constitute and appoint my friend John McMenamy of the city of St. Louis, State of Missouri, and Frederick Kaufhold of the city of St. Louis and State of Missouri, executors, of this my last will and testament, and I direct that they shall not be required to give bond before administering on said estate.
“Third: I direct that the executors hereinbefore named shall take charge of the said real estate above mentioned and described, and for the purpose of paying the legacies and shall sell same at as early a date as convenient after my death, as will not prove injurious to said real estate; they are to collect the rents of said real estate until so sold, and make such disposition by sale or otherwise of the stock above mentioned as will prove most advantageous. The executors to act solely as they may deem best for the interest of my estate, and by no means to dispose of this stock at a sacrifice or force the same upon the market.
“Fourth: I give, devise and bequeath to the two daughters, Roselia Wagner (nee Kaufhold)' and Barbara Kirchner (nee Kaufhold) being daughters of Henry Kaufhold deceased, my brother, the sum of one thousand dollars each.
“Fifth: To George Kaufhold the son of my brother Fbancis Joseph. Kaufhold in Germany, I give, devise and bequeath the sum of one thousand dollars.
“To my brother Francis Joseph Kaufhold (if living), I give, devise and bequeath the sum of one thousand dollars.
“Sixth: I give, devise and bequeath to two children of Martha E. Gluth (nee Kaufhold) of Germany (Joseph Gluth and Martha E. Gluth) the sum of twelve hundred and fifty dollars each.
“Seventh: I give, devise and bequeath to Mary Antrup (nee Koch) and Margaret Roche (nee Koch) and Jacob Koch of Vandalia, Illinois, children of my sister Mrs. Anna Mary Koch, wife of Christopher Koch, each the sum of five hundred dollars.
“Eighth: I give, devise and bequeath to Mathias Kampelmann and Theresa Kampelmann his wife, the said Mathias Kampelmann being half brother of my late wife, the sum of one thousand dollars.
“Ninth: I give, • devise and bequeath to George Kampelmann, son of Mathias Kampelmann, the sum one thousand dolíais.
“Tenth: I give, devise' and bequeath to Lizzie Kampelmann now Mrs. Sueme, wife of Joseph Sueme, the sum of eight hundred and fifty dollars.
“Eleventh: I give, devise and bequeath to Sophia Kampelmann, daughter of Mathias Kampelmann, the sum of five hundred dollars.
“Twelfth: I give, devise and bequeath to Fredoricka Kampelmann, wife of Henry Kampelmann, two hundred and fifty dollars.
“Thirteenth: I give, devise and bequeath to Mrs. Minnie Junior, daughter of said Henry Kampelmann, the sum of two hundred and fifty dollars.
“Fourteenth: I give, devise and bequeath ' to Adolph Kampelmann, a son of Henry Kampelmann aforesaid, the sum of two hundred and fifteen dollars.
“Fifteenth: I give, devise and bequeath to Bertha Kampelmann, wife of Anton Kampelmann, half brother of my late wife, the sum of four hundred dollars.
“Sixteenth: I give, devise and bequeath to John Kampelmann, Theresa Kampelmann, Sophia Kampelmann, Frederick Kampelmann and Louis Kampelmann, children of Anton Kampelmann, the sum of four hundred dollars each.
“Seventeenth: I give, devise and bequeath to John Kampelmann, Kate Kampelmann and Sophia Lorent, children of Henry Kampelmann, half brother of my late wife, each the sum of four hundred dollars.
“Eighteenth: I give, devise and bequeath to my friend John McMenamy, the sum of five hundred dollars, for services, to be rendered for an unremunerative character during my lifetime.
“Nineteenth: I give, devise and bequeath to Frederick Kaufhold, son of my late brother Henry Kaufhold, St. Louis, Missouri, the sum of one thousand dollars.
“Twentieth: I give, devise and bequeath to Dorathea Schollmeier {nee Kaufhold), daughter of my brother Henry' Kaufhold deceased of Germany, the snm of one thousand dollars.
“Twenty-first: I give, devise and bequeath to Caroline Keilholz (nee Roche), my niece, and daughter of John Roche, the sum of two hundred and fifty dollars.
“Twenty-second: I give, devise and bequeath to Sister Anna Roche, known in the religious world as Sister M. Aurelia, of the order of the Precious Blood, being a sister of Caroline Keilholz, the sum of fifteen hundred dollars.
“Twenty-third: I give, devise and bequeath to the Kenrick Seminary of St. Louis, Missouri, the sum of one thousand dollars.
“Twenty-fourth: I give, devise and bequeath to the Order of Sisterhood managing the institution known as the Good Shepherd Convent, St. Louis, Missouri, the sum of five hundred dollars to be expended by them for the benefit of the institution or its inmates as they may deem best.
“Twenty-fifth: I give, devise and bequeath to the St. Vincent German Catholic Orphan Asylum, the sum of one thousand dollars.
“Twenty-sixth: I give, devise and bequeath to the Order of the Carmelite Nuns of St. Louis, the sum of five hundred dollars.
‘ ‘ Twenty-seventh: I give, devise and bequeath to the Oblate Sisterhood, having in charge the Colored orphans at Normandy, St. Louis County, Missouri, the sum of five hundred dollars, to be used for the benefit of said orphans.
“Twenty-eighth: I give, devise and bequeath to the Order of the Little Sister of the Poor, St. Louis, Missouri, the sum of five hundred dollars.
“Twenty-ninth: If there should be a residue left over in my estate after all debts and legacies are settled by the executors of this 'will, 1 direct that same shall be divided amongst all immediate relatives herein named proportionately as to the amounts herein- before given, bid limited to those relatives 'residing in United States of America.
“Thirtieth: I give, devise and heqneath all my household and kitchen furniture of whatsoever character contained in my late residence, to my executors, and they are to give and parsel the same to my immediate relatives as they may deem proper, and their decision in this particular respect shall be final.
“Thirty-first: I give, devise and bequeath to Lena Fohr the sum of two thousand and five hundred dollars. This sum is a recompense for the faithful performance of work by said Lena Fohr as a servant in my house, and as a token of my appreciation of her kindness to my late wife during her lifetime. This allowance, though much larger than any claim due her in full for all services, and her acceptance of such sum from my executors, shall be deemed a waiver of all or any other claims from my estate and to be considered payment in full to date.
“Thirty-second: I give, devise and bequeath to Mathias Kampelmann the east part of my lot in Calvary Cemetery, being in Section twelve of said lot one hundred and forty-eight, and I desire that my 'executors carry out the intentions as expressed in this will, with as little delay as may be.
“In testimony of all of the above and foregoing I have hereunto set my hand and seal this ninth day of May, A. D. 1904, in the presence of Frank J. Weber and Henry W. Berger, who in my presence and in the presence of each other have attested this will by subscribing their names thereto as Witnesses.
G-eo. Katjfhold Seal”

The will was properly witnessed, and was on January 9, 1908, duly admitted to probate.

Oral testimony admitted upon the trial without objection was to the following effect:

On behalf of respondents, John McMenamy, one of the executors, testified that he acted as testator’s real estate agent for thirty years, and that fifteen days before the testator executed the will the testator had prepared the will and handed it to the witness and ásked him if he were sure that none of his (testator’s) wife’s relatives would come in for any part of the residuary; that he had given them considerable and did not want to give them any more. Witness told him that the term “immediate relatives” meant blood relatives of the testator ; that after considerable discussion on the point, during the intervening fifteen days, the will was executed by the testator.

On behalf of the wife’s relatives, Theresa Kampelmann, one of the legatees, testified that about fourteen days after the death of testator’s wife, the witness told testator that she had heard he was going to leave all his property to Frederick Kaufhold and that testator replied: “Don’t you belieAm it; they get nothing more than you, but he can get no more than you.”

Appellants also introduced in evidence the will of testator’s Avife whereby she devised all of her property to testator.

Did the learned chancellor err in granting a new trial herein? That is the question for determination. If the court did erroneously grant a new trial'then the order granting a new trial should be reversed and the cause remanded with directions to enter up .judgment as per the original decree. If on the other hand it should be determined that the court did not err in granting a new trial, it would appear that the proper practice in such matters (even in equity suits) would require that the order granting the new trial be affirmed and the cause remanded for a re-trial. [Hurley v. Kennally, 186 Mo. 225, l. c. 228-9.]

Upon careful consideration, we are of the opinion that the trial court erred in decreeing that paragraph twenty-nine included within its provisions the legatees Avho were the blood relatives of the testator’s wife. That being true the court did not err in .granting a new trial.

The rule here applicable and which appears to be sanctioned by the overwhelming weight of authority is to the effect that “unless the will disclose a plain purpose to the contrary” the term “relatives” when used therein ‘ ‘ does' not prima-facie refer to husband, wife or marriage connections, but to those only of one’s own blood.” [Schouler on Wills (5 Ed.), par. 537, and cases therein cited; 2 Jarman on Wills (6 Ed.), page 1633; 2 Woerner’s Law of Administration (2 Ed.), pages 987-988; 34 Cyc. 1037, and cases therein cited.] As wo understand the contention of appellants they do not undertake to deny the correctness of the above rule, but undertake to avoid its application by saying that from the terms of the will itself it appears thát testator intended to include within the scope of said residuary clause those blood relatives of the wife who are named in the will.

We are unable to agree with this contention. It will be noticed that the above rule applies “ unless the will disclose a plain purpose to the contrary.” We have read the will here sought to be construed many times and have given the same very careful consideration, but we are unable to gather therefrom any language or inference which would indicaté a plain purpose to include within the bounty of said clause the relatives of the testator by affinity. We must confess that the rather ingenious argument made in their brief by the learned counsel for the appellants does in a way tend to create a suspicion that the testator may have intended to include more than this own named blood relatives in said clause, but' after all it is nothing more than a suspicion and mere suspicion cannot be said to be tantamount to the showing of a plain purpose as required by the rule.

One of the very early cases (Maitland v. Adair, 3 Ves. 230, decided in 1796 and cited by some of the learned text-writers above), dealt with a situation very analogous to the case at bar. In that case the testator gave legacies to many of his blood relatives by name. He also gave a legacy to his brother-in-law. A codicil to the will contained a residuary clause as follows: “My will and intention is that whatever money, over and above what I have already bequeathed, I may be possessed of at my death, may be divided among my said relations by my executors, in the proportion I have bequeathed the other part of my fortune.” The Lord Chancellor in deciding the case held that the brother-in-law was not included within the terms of the residuary clause and that the word relations used therein did not include those by affinity.

We therefore conclude that the order granting a new trial should be affirmed and that the cause should be remanded.

It is so ordered.

All concur; Walker, P. J., in separate opinion.

WALKER, P. J.

(concurring) — I concur somewhat reluctantly with the conclusion reached in the majority opinion. That the trend of authority sustains the rule that the law favors blood in bequests of real property I do not question. Many cases sustain this doctrine, which applies with equal force to other portions of wills as well as to the use of the word relatives here under review. [Thompson v. Thornton, 197 Mass. 273; Wapello County v. Eikelberg, 140 Iowa, 736] There is, however, a well defined exception to this canon of construction to which another equally well established rule may be applied and that is, that a will should, in harmony with a reasonable interpretation of the language employed, be construed according to the purpose and intention of the testator. Applied here, and reading the word relatives as used in the twenty-ninth paragraph in connection with the express bequests made in other parts of the will, which include not only relatives by blood but those by affinity as well, the conclusion is not unreasonable that it was in its generic rather than its technical sense that the word was employed. [De Graffenreid v. Iowa L. & T. Co., 20 Okla. 687, 95 Pac. 624; Drew v. Wakefield, 54 Me. l. c. 294.] If left, therefore, to the language of the will itself, we would be strongly inclined, despite the current of authority elsewhere, to hold that the testator meant to use the word in the broader sense of a layman rather than in the technical one of a lawyer and to include both classes of relatives. However, our own court has ruled upon this question in Bramell v. Adams, 146 Mo. 70, 89, and while the terms of the will there were not as general as in the case at bar, the court held explicitly that “it has long been settled that a bequest to 'relations’ applies only to those who, by virtue of the Statute of Distributions, would take property as next of kin.” From this it appears that language more specific than that employed by the testator is-necessary to broaden the use of the word beyond the restrictions of the general rule. We therefore concur.


author: WHITE, C.

text:
    THE STATE v. SWIFT & COMPANY, a Corporation, and F. A. HUNTER, Manager, Appellants.
    Division Two,
    February 16, 1918.
    1. SALE: When Complete. Where anything remains to be done between the parties before the property is delivered, as separating the specific quantity from a larger amount, or identifying it, the sale is not complete; but after the separation for the purpose of delivery, when there is nothing further to be done except to de- • liver the goods, the sale is complete and the, title passes to the vendee.
    2. -: -: Future Payment: Delivery Charges. Where a contract of sale is made for a specific article and there is nothing more to do except to deliver it and collect the price, the contract of sale is complete without delivery and without payment, even though the bill accompanying the goods bears a mark meaning that the delivery charges, as well as the cost of the goods, are to.be paid by the purchaser.
    3. OLEOMARGARINE: Keeping for Sale. A corporation in St. Louis engaged in the grocery business, ordered, by telephone, a hundred and fifty pounds of oleomargarine from defendant’s plant in East St. Louis, Illinois. That amount, being five thirty-pound cases, was separated from the general stock, loaded into defendant’s wagon, hauled to the grocery store in St. Louis, and there delivered, the price, including the delivery charges, being charged to the grocer, and later paid. The commodity was of a character condemned by the statute, and the charge was, not that defendant sold the same in this State, but “did unlawfully and wilfully offer for sale and keep on hand for the purpose of sale” to said grocery company said substance. Held, that the sale was complete before the delivery of the goods, and that the defendant did not keep them on hand for sale in St. Louis at any time after said sale was complete, and a judgment convicting the defendant of the charge of keeping the goods for sale in this State must be reversed.
    Appeal from St. Louis Court of Criminal Correction.— Hon. Galvin N. Miller, Judge.
    Reversed and remanded.

      A. & J. F. Lee and James A. Waechter for appellants.
    The court erred in refusing to discharge the defendants at the close of the State’s ease, because: (a) the evidence showed without conflict that the defendants did not “in the city of St. Louis, State of Missouri, on the fourth day of October, 1915 [or any other day], unlawfully and wi1 fully offer for sale and keep on hand for the purpose of sale to Stocker Brothers, a substance which was then and there composed of animal fat, ’ ’ etc.; (b) the evidence clearly showed that the sale in question was effected and the title to the goods passed toStocker Brothers in Illinois; and (c) there was no proof on the part of the State of any sale by appellants in Missouri. State v. Rosenberger, 212 Mo. 650; State v. Wingfield, 115 Mo. 428; Kerwin & Co. v. Doran, 29 Mo. App. 397; Glass v. Blazer, 91 Mo. App. 564; Cunningham v. Ashbrook, 20 Mo. 553; Bank v. Smith, 107 Mo. App. 178; Ober v. Carsons, Executor, 62 Mo. 209; State v. Newell, 140 Mo. 282; Longsdorff v. Meyers, 171 Mo. App. 256; Bass v. Walsh, 39 Mo. 192; Wheless v. Grocer Co., 140 Mo. App. 572; Benjamin on Sales (5 Ed.), 2; State v. Scott, 189 S. W. 1191; Garrbracht v. Commonwealth, 96. Pa. 449; Commonwealth v. Hess, 148 Pa. 98; Williston on Sales (1909 Ed.), 353-547; Williams v. Evans, 39 Mo. 234.

      Frank W. McAllister, Attorney-General, and S. E. Shelley, Assistant Attorney-General, for the State.
    The court properly refused to discharge defendants at the close of the State’s case. (1) There was no material variance in the seeming discrepancy between the allegations of the information and the proof offered by the State in support thereof, (a) To constitute a variance, there must be such a. lack of harmony between the allegations and the evidence as to render the proof inadequate. 2 Bishop on New Criminal Procedure (2 Ed.), sec. 484a, 3. (b) Where the substance of the issue is proved, no variance is encountered. 2 Bishop on New Criminal Procedure (2 Ed.), sec. 488b, 1; 22 Cyc. 455-456, 481; State v. Mohoney, 122 Iowa, 168; Adams v. People, 25 Colo. 532; State v. Brown, 82 N. C. 585. (c) Evidence of delivery by defendants of colored oleomargarine to a customer is proof of “sale” or “offer for sale” in violation of the statute. People v. Koch, 19 Misc. 634, 44 N. Y. Supp. 387; People v. Dairy Co., 122 N. Y. Supp. 294; Willis v. Oil Co., 50 Minn. 296; Commonwealth v. Gordon, 159 Mass. 8; People v. Lewis, 122 N. Y. Supp. 1025. (2) Uncontradicted evidence of a delivery of colored oleomargarine by defendants to a customer in the city of St. Louis is sufficient to make out a prima facie case against defendants. People v. Koch, 19 Misc. 634, 44 N. Y. Supp. 387; People v. Dairy Co., 122 N. Y. Supp. 294. (a) Unless there is an absence of substantial evidence to sustain the verdict, the finding of the jury will not be disturbed on appeal. State v. Chenault, 212 Mo. 132-137; State v. Sassaman, 214 Mo. 737; State v. Burton, 214 Mo. 316; State v. Maurer, 255 Mo. 168. (3) The evidence clearly showed that the sale in question was consummated and that property in the goods passed to the vendee in Missouri, (a) Where, by the terms of the contract of sale, the seller is required to send, forward or deliver the goods to the buyer or to some one for him, at a designated place, title thereto does not vest in the buyer until the transportation is at= an end, or the goods are delivered in accordance with the contract. 35 Cyc. 302-303; Benjamin on Sales (5 Ed.), pp. 322-323; Williston on Sales, sec. 280, pp. 405-407;- Tiffany on Sales (2 Ed.), p. 156; 24 Am. & Eng. Ency. Law, p. 1050; Henning v. Powell,-33 Mo. 468; Hance v. Railway, 62 Mo. App. 63; Taussig v. Mill Co., 124 Mo. App. 209; Scharff v. Meyer, 133 Mo. 448; Metal Co. v. Daughetry, 204 Mo. 82; Milling Co. v. Kramer Bros., 71 Kan. 468; Commonwealth v. Adair, 89 S. W. (Ky.) 1130; Hogins v. Combs, 102 Ky. 165; Lumber Co. v. Railway, 74 N. W. 670; Taylor v. Cole, 111 Mass. 363; Buckingham v. Drake, 112 Fed. 270. (b) The use of such words as “sold” and “purchased” in the invoice, order or other evidence of transactions concerning the transfer of personal property is not conclusive evidence of completed contract, and does not necessarily imply a change of title in the goods. Iron Co. v. Mfg. Co., 80 Fed. 878; Gallup v. Sterling, 49 N. Y. Supp. 945; Blockwood v. Packing Co., 76 Cal. 212; Shainwald v. Cody, 92 Cal. 83; Brooks v. Libby, 86 Me. 151.
   WHITE, C.

The Assistant Prosecuting Attorney of St. Louis Court of Criminál Correction filed information in that court charging that the defendants “did on the 4th day of October, 1915, unlawfully and wilfully offer for sale and keep on hand for the purpose of sale to Stocker Brothers, a corporation, a substance” which is described as composed of animal fat, etc., and colored in imitation of butter. The charge is a violation of section 651, Revised Statutes 1909. The case was first appealed to this court and transferred to the St. Louis Court of Appeals for want of jurisdiction. On a hearing, a majority of the St. Louis Court of Appeals held that the evidence sustained the verdict of guilty as charged in the information, but Judge Reynolds of that court, dissenting, caused the same to be certified to this court on the ground that the majority opinion was in conflict with the decision of the Kansas City Court of Appeals in the case of State v. Scott, 189 S. W. 1191, and with the decision of this court in the case of State v. Rosenberger, 212 Mo. 648.

The evidence shows that the defendant Swift & Company had what is called a “plant” in East St. Louis, Illinois, and that the defendant Hunter was manager of the business of that corporation at that place. Stocker Brothers was a corporation engaged in the grocery business in the city of St. Louis, Missouri. On October 4, 1915, someone representing Stocker Brothers in St. Louis called Swift & Company in East St. Louis on the telephone and ordered a hundred and fifty pounds . of colored Lincoln oleo. That amount of that commodity, being five thirty-pound cases, was then separated from the general stock, loaded into a wagon belonging to Swift & Company, hauled to Stocker Brothers*’ store in St. Louis, Missouri, and there delivered; the price for the same was charged to Stocker Brothers by Swift & Company and the bill was paid November 26,1915.

There is no dispute that this commodity was of a character condemned by the statute. The defendants were arrested on the information above set out, with the result as mentioned. It was held by a majority of the St. Louis Court, of Appeals that the oleomargarine in question was kept on hand by the defendants in the city of St. Louis for the purpose of sale. While the statute is leveled at a sale of oleomargarine, colored so as to resemble butter, as well as keeping the same on hand for sale, the information does not charge a sale, but charges the keeping c>n hand and offering for sale.

This case differs from the case of State v. Rosenberger, 212 Mo. 648, which concerns the sale of liquor by a firm in Kansas City on an order from a dealer in Webster County, Missouri, a local option county. The liquor was delivered to the railroad and shipped C. O. D. It was held that the sale took place in Kansas City and not in Webster County, and, therefore, was not in violation of the Local Option Law. The Rosenberger case was followed in the Scott ease and in other cases where liquor was the subject of the sale. In those cases delivery to a carrier C. 0, D. was held to be delivery to the purchaser. In this case, Swift & Company sent their own wagon with the oleomargarine to Stocker Brothers’ place of business in St. Louis. The bill accompanying the goods bears the mark C. A. E. E., which was explained by Mr. Hunter to mean cost of goods and delivery charges; that the price paid hy defendants included those items.

The rule in this State in sales of this character is that where anything remains to be done between the parties before the property is delivered, as separating the specific quantity from a larger amount, or identifying it, the sale is not complete; but after the separation for the purpose of delivery, when there is nothing further to be done except to deliver the goods, the sale is complete and the title passes. [Bank v. Smith, 107 Mo. App. l. c. 190; Longsdorff v. Meyers, 171 Mo. App. 255.] The only thing that was lacking in this case was the separation of the goods from the general stock. After they were separated and segregated by placing them in the wagon for the purpose of delivery it would look as if the contract of sale was complete at that time, and title passed, as would have been the case if Swift & Company had had only five cases of oleomargarine and Stocker Brothers had been in the store at the time, designated the five cases, and agreed upon the terms of purchase.

It seems to make no difference that the goods were not paid for (at the time, but charged to the purchaser’s account. It is held usually that where a contract of sale is made for a specific article to be charged for and where there is nothing more to do except to deliver it and collect .the price, the contract of sale is complete without delivery and without payment. [Commonwealth v. Hess, 17 L. R. A. (Pa.) 176; State v. Davis, 60 S. E. (W. Va.) 584.] In the Hess case the seller conducted a wholesale liquor business at a place where it was lawful to do so, but delivered the liquor in question to the purchaser in territories where it was unlawful, and it was held that the sale was complete at the seller’s place of business where the goods were separated from the general stock and the price charged to the purchaser.

For the purpose of this case it is not necessary to hold that the sale under consideration was complete, in the State of Illinois. The defendant is charged, not with selling but with keeping the forbidden commodity on hand for the purpose of sale, and 'it becomes important to ascertain what is a “sale” for the purpose of which the oleomargarine was alleged to have beep kept. Nor are we concerned with the Statute of Frauds, nor the effect of non-delivery upon the rights of third persons. A contract of sale may be fully executed so that title passes, or it merely may be executory. [Cunningham v. Ashbrook, 20 Mo. 553; Bank v. Smith, 107 Mo. App. 178.] In general, the acceptance of an order by the person on whom the order is made is a binding agreement between the parties, although there is no completely executed contract of sale. As said in the ease of Cunningham v. Ashbrook, 20 Mo. l. c. 556:

‘ ‘ The term sale, however, in its largest sense, may include every agreement for the transferring of ownership,- whether immediate or to be completed afterwards, and goods, in reference to the disposition of them by sale, may be considered as existing separately and ready for immediate delivery, or as a part of a larger mass from which they must be separated by counting, weighing, or measuring, or as goods to be hereafter procured and supplied to the buyer, or to be manufactured for his use.”

Then we have this situation: Here was a binding contract entered into between these parties whereby the owner agreed to sell and deliver certain goods to the purchaser. The goods were separated from the general stock for the purpose of such delivery; they were placed in a wagon and taken to St. Louis in pursuance of that purpose, and delivered there. By what stretch of construction could it be said that Swift & Company kept those goods on hand for even an instant of time for the1 purpose of sale in St. Louis'? Stocker Brothers undoubtedly kept oleomargarine for sale and sold it in St. Louis, but whether there was a proceeding against them does not appear.

A sale is a contract. It includes an agreement upon quality and price, as well as delivery. To say the goods were kept for the purpose of selling them is to say they were kept for the purpose of seeking a purchaser; for the purpose of beginning and concluding a bargain, by which title would pass. It is not shown that the driver of the wagon had any discretion in the matter or had any authority whatever to make a contract regarding the property; on the contrary, it appears that he had no discretion except to deliver it in pursuance of a contract previously made. He could not have had the oleomargarine in his custody for the purpose of sale unless he had authority to make a contract of sale. If, at any point on his way from the plant in East St. Louis to the purchaser’s store in St. Louis, he had been accosted by one who wanted to buy, he would have been obliged to say he had no such goods “for sale,” but what he had on his wagon was sold. Statutes usually are to be construed so as to give effect to the ordinary meaning of words. [State ex rel. v. Gordon, 266 Mo. l. c. 411.] There is no reason why a strained construction should be given the statute with which we have to deal, so as to convict the defendants, because the common understanding of the meaning of the language used seems to accord with the evident purpose of the law.

The judgment is reversed and the cause remanded.

Roy, C., concurs.

PER CURIAM: — The foregoing opinion by White, C., is adopted as the opinion of the court.

All of the judges concur.