COX, P. J.
-Action for damages for breach of contract. Plaintiff recovered and defendant appealed.
Defendant, Cooper, was the owner of a pit of clay described as dias pore clay and burley clay, the latter being of cheaper grade than the former. These parties entered into a written contract, the essential parts of which are as follows:
“That party of the first part for and in consideration of the price and sum hereinafter specified agrees to furnish F. O. B. cars, St. James, Mo., two cars of Dias Pore clay and one car of second or Burley clay, if the cars are furnished when the clay is ordered, and if the cars are not furnished when the clay is ordered then to furnish on the tract (on the ground) for the price and sum of $4 per ton of 2000 pounds for the Dias Pore clay and $1.70 per ton for the second, or Burley clay, R. E. weights to govern, and further, after returns of the aforesaid cars are received and the same proves satisfactory to party of the second part, to furnish F. O. B'. cars, St. James, Mo., twenty-five or more cars and to furnish in proportion of one car of Burley not to exceed two cars of Burley to four of Dias Pore.
Party of the second part agrees to take the above-named three cars of clay, and to ship same as soon as cars can be procured; party of the second part agrees.
after returns are received on the above mentioned three cars, and said returns prove satisfactory to give his order to party of the first part for not less than twenty-five cars and to' pay the price and sum above mentioned, and to ship same as fast as cars can be procured.
Party of the second part hereby agrees to pay the price for the clay above mentioned as follows: 50 per cent when clay is loaded, and balance when returns are received from each shipment.
Party of the second part further agrees to give to party of the first part a written guarantee for payment of the remainder of each shipment when he makes an order for the twenty-five or more cars.
Both parties agree that the twenty-five cars or more as stated herein shall be taken and construed to mean not less than twenty-five cars nor more than the capacity of the clay pit is now opened up.
Party of the second part further agrees to pay for the Burley or seconds, 50 per cent when same is put on the ground or cars and to pay the balance on each car put on the ground upon receipt of the returns from each car or cars shipped of the Dias Pore clay.”
Under the written contract, the three cars mentioned were delivered to plaintiff. He shipped them and got satisfactory returns. He then told defendant to continue to load as long as he had any clay. Also told defendant he would take all the clay in the pit. No written order was given defendant for any clay. Defendant spoke to plaintiff about the written guarantee for the 50 per cent not paid at time of delivery. Plaintiff did not give the written guarantee but the evidence in this case tends to show that with defendant’s consent and in lieu of said guarantee, plaintiff arranged orally with a bank for remittances for shipments to be made to the bank and the bank then to pay defendant. The business continued in that way for a period of about six months during which time defendant delivered to plaintiff forty-eight cars of dias pore clay and 1694 tons of burley clay.
Fifty percent of the purchase price was paid as the clay was delivered. The dias pore was then shipped by plaintiff and remittance therefor made to the bank and the bank paid defendant out of this remittance the balance due him on all clay delivered. After business had been conducted in this way for about six months, defendant made some complaint about the arrangements for delivery of burley clay and he and plaintiff had some difficulty about it and defendant then notified plaintiff he would deliver no more clay. Plaintiff then brought this suit for damages on account of the failure of defendant to mine and deliver the clay remaining in the pit.
The first question raised is that the contract was not binding because unilateral and a suit upon it for damages for its breach could not be maintained. It is also contended in the same connection that testimony to show that plaintiff told defendant he would take all the clay in the pit was incompetent because it was an offer to change by parol the terms of a written contract and for the further reason that if plaintiff wished to exercise his option to order more than was specifically provided for in the contract, the order must be in writing.
Defendant in his answer in the case and also in the brief in this court admits, impliedly at least, that the contract was binding as to the first three cars delivered and shipped and the twenty-five cars additional mentioned in the written contract. There can be no question that the contract was a valid and binding contract for the sale of some amount of clay. By its terms when executed, three cars were sold by defendant and bought by plaintiff. We are of the opinion that when the returns foi the shipment of the three cars were received and were admitted by plaintiff to be satisfactory, that the contract then became binding for twenty-five cars additional without any further order from plaintiff. This much is practically conceded by appellant. As more than twenty-five cars additional were delivered and paid for we need not discuss further that feature of the con
tract. We only mention the three cars and the twenty-five cars as showing that the contract was valid and binding when executed. The real question in this case is as to what extent it was binding and what force, if any, was given it by the subsequent action of the parties. Some suggestion was made in oral argument in this court that the clay in the pit was real estate and under the Statute of Frauds, a sale of it must be by written contract which should provide the quantity sold, the consideration and all other parts of the agreement in full and hence an order for any amount of clay must be in writing. We think the appellant is wrong in that position. It is true that while the clay remained in the pit it was part of the real estate but plaintiff did not buy it in the pit. Had he done so and had his contract provided that he should remove the clay from the pit, then appellant’s contention would be correct. By this .contract, however, plaintiff bought clay delivered at the railroad and he did not buy it in the pit. The defendant was to deliver the clay, hence he must sever it from the soil and convert it into personal property before he could deliver it. The sale was of personal property and that fact must be kept in mind in construing this contract.
In a sale of personal property, the amount sold must be certainly stated or means for accurately determining the amount provided. [Hudson v. Browning, 264 Mo. 58, 174 S. W. 393; Reigart v. Manufacturers Coal & Coke Co., 217 Mo. 142, 117 S. W. 61; Halloway v. Mountain Grove Creamery Co., 286 Mo. 489, 499, 228 S. W. 451; Saginaw Medicine Co. v. Dykes et al., 210 Mo. App. 399, 238 S. W. 556; Malloy v. Egyptian Tie & Timber Co., 212 Mo. App. 429, 247 S. W. 469.]
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COX, P. J.
-Action for damages for breach of contract. Plaintiff recovered and defendant appealed.
Defendant, Cooper, was the owner of a pit of clay described as dias pore clay and burley clay, the latter being of cheaper grade than the former. These parties entered into a written contract, the essential parts of which are as follows:
“That party of the first part for and in consideration of the price and sum hereinafter specified agrees to furnish F. O. B. cars, St. James, Mo., two cars of Dias Pore clay and one car of second or Burley clay, if the cars are furnished when the clay is ordered, and if the cars are not furnished when the clay is ordered then to furnish on the tract (on the ground) for the price and sum of $4 per ton of 2000 pounds for the Dias Pore clay and $1.70 per ton for the second, or Burley clay, R. E. weights to govern, and further, after returns of the aforesaid cars are received and the same proves satisfactory to party of the second part, to furnish F. O. B'. cars, St. James, Mo., twenty-five or more cars and to furnish in proportion of one car of Burley not to exceed two cars of Burley to four of Dias Pore.
Party of the second part agrees to take the above-named three cars of clay, and to ship same as soon as cars can be procured; party of the second part agrees.
after returns are received on the above mentioned three cars, and said returns prove satisfactory to give his order to party of the first part for not less than twenty-five cars and to' pay the price and sum above mentioned, and to ship same as fast as cars can be procured.
Party of the second part hereby agrees to pay the price for the clay above mentioned as follows: 50 per cent when clay is loaded, and balance when returns are received from each shipment.
Party of the second part further agrees to give to party of the first part a written guarantee for payment of the remainder of each shipment when he makes an order for the twenty-five or more cars.
Both parties agree that the twenty-five cars or more as stated herein shall be taken and construed to mean not less than twenty-five cars nor more than the capacity of the clay pit is now opened up.
Party of the second part further agrees to pay for the Burley or seconds, 50 per cent when same is put on the ground or cars and to pay the balance on each car put on the ground upon receipt of the returns from each car or cars shipped of the Dias Pore clay.”
Under the written contract, the three cars mentioned were delivered to plaintiff. He shipped them and got satisfactory returns. He then told defendant to continue to load as long as he had any clay. Also told defendant he would take all the clay in the pit. No written order was given defendant for any clay. Defendant spoke to plaintiff about the written guarantee for the 50 per cent not paid at time of delivery. Plaintiff did not give the written guarantee but the evidence in this case tends to show that with defendant’s consent and in lieu of said guarantee, plaintiff arranged orally with a bank for remittances for shipments to be made to the bank and the bank then to pay defendant. The business continued in that way for a period of about six months during which time defendant delivered to plaintiff forty-eight cars of dias pore clay and 1694 tons of burley clay.
Fifty percent of the purchase price was paid as the clay was delivered. The dias pore was then shipped by plaintiff and remittance therefor made to the bank and the bank paid defendant out of this remittance the balance due him on all clay delivered. After business had been conducted in this way for about six months, defendant made some complaint about the arrangements for delivery of burley clay and he and plaintiff had some difficulty about it and defendant then notified plaintiff he would deliver no more clay. Plaintiff then brought this suit for damages on account of the failure of defendant to mine and deliver the clay remaining in the pit.
The first question raised is that the contract was not binding because unilateral and a suit upon it for damages for its breach could not be maintained. It is also contended in the same connection that testimony to show that plaintiff told defendant he would take all the clay in the pit was incompetent because it was an offer to change by parol the terms of a written contract and for the further reason that if plaintiff wished to exercise his option to order more than was specifically provided for in the contract, the order must be in writing.
Defendant in his answer in the case and also in the brief in this court admits, impliedly at least, that the contract was binding as to the first three cars delivered and shipped and the twenty-five cars additional mentioned in the written contract. There can be no question that the contract was a valid and binding contract for the sale of some amount of clay. By its terms when executed, three cars were sold by defendant and bought by plaintiff. We are of the opinion that when the returns foi the shipment of the three cars were received and were admitted by plaintiff to be satisfactory, that the contract then became binding for twenty-five cars additional without any further order from plaintiff. This much is practically conceded by appellant. As more than twenty-five cars additional were delivered and paid for we need not discuss further that feature of the con
tract. We only mention the three cars and the twenty-five cars as showing that the contract was valid and binding when executed. The real question in this case is as to what extent it was binding and what force, if any, was given it by the subsequent action of the parties. Some suggestion was made in oral argument in this court that the clay in the pit was real estate and under the Statute of Frauds, a sale of it must be by written contract which should provide the quantity sold, the consideration and all other parts of the agreement in full and hence an order for any amount of clay must be in writing. We think the appellant is wrong in that position. It is true that while the clay remained in the pit it was part of the real estate but plaintiff did not buy it in the pit. Had he done so and had his contract provided that he should remove the clay from the pit, then appellant’s contention would be correct. By this .contract, however, plaintiff bought clay delivered at the railroad and he did not buy it in the pit. The defendant was to deliver the clay, hence he must sever it from the soil and convert it into personal property before he could deliver it. The sale was of personal property and that fact must be kept in mind in construing this contract.
In a sale of personal property, the amount sold must be certainly stated or means for accurately determining the amount provided. [Hudson v. Browning, 264 Mo. 58, 174 S. W. 393; Reigart v. Manufacturers Coal & Coke Co., 217 Mo. 142, 117 S. W. 61; Halloway v. Mountain Grove Creamery Co., 286 Mo. 489, 499, 228 S. W. 451; Saginaw Medicine Co. v. Dykes et al., 210 Mo. App. 399, 238 S. W. 556; Malloy v. Egyptian Tie & Timber Co., 212 Mo. App. 429, 247 S. W. 469.]
In construing a contract for the sale of personal property in order to determine the quantity sold, the rule that that is certain which can be made certain applies and if the property is definitely described, the fact that some other act such as weighing or counting must be done before the amount can be ascertained does not destroy the
validity of the contract. [Ficklin v. Finder, 161 Mo. App. 283, 143 S. W. 853; Leesley Brothers v. A. Rebori Frui
t
Co., 162 Mo. App. 195, 204, 144 S. W. 138; 20 Cyc. 270; 35 Cyc. 100.]
The written contract gave plaintiff the option to order any amount up to the capacity of the pit but did not provide how the order should be given. Appellant contends that if this provision were binding at all, the order must be in writing. We do not agree with that contention. The option to order more clay could be exercised in the same way that the original contract could be executed. That contract was not required to be in writing. Under our statute, section 2170, Revised Statutes 1919, the parties in executing the contract of sale had three options: They could reduce the contract to writing, or make it orally if the purchaser paid part of the purchase price, or could make it orally if the seller delivered and the purchaser accepted part of the property purchased. The fact that the contract which gave the purchaser the right to order more than twenty-eight cars provided for in the contract was in writing did not, in the absence of such a provision therein, take away from the parties the right to proceed under the statute by the purchaser giving an oral order and the seller orally accepting it and delivering thereunder part of the goods purchased. We think that when the verbal order was given and accepted and acted upon by the parties and part of the clay delivered and paid for under this verbal order, the contract then bound the defendant to furnish and the plaintiff to receive and pay for all the clay in the pit and the evidence by which these facts were shown was competent. [Rickey et al. v. Tenbroeck et al., 63 Mo. 563; Martin v. Ray County Coal Co., 288 Mo. 241, 255, 232 S. W. 149; Earle Fruit Co. v. McKinney, 65 Mo. App. 220, 229-30; Hollrah-Dieckman Refrigerator & Fixture Co. v. St. Louis House & Window Cleaning Co., 186 Mo. App. 207, 213, 171 S. W. 576.]
The written contract provided'that if plaintiff should order any amount of clay after the returns from the shipment of the first three cars were received, he should, when making the order, give the defendant a written guaranty to secure the payment of one-half of the purchase price which was to he paid when returns from shipments were received. This written guaranty was not given but plaintiff’s evidence tends to show that in lieu of it the parties agreed that returns from shipments should be sent to a bank and the bank pay defendant before paying anything to plaintiff. This was acted upon for six months and until forty-eight cars of Dias Pore clay had been delivered and shipped and that, as well as 1694 tons of Burley clay paid for in full out of remittances received by the bank from shipments of clay. When defendant refused to deliver any more clay to plaintiff, he did not refuse because the written guaranty had not been given but because he became offended at plaintiff. The effort to justify his refusal to deliver any more clay on the ground that the written guaranty had not been furnished was clearly an after-thought. He did not base his refusal upon that ground at the time. We do not say that that fact alone precludes him from afterward asserting it. In the first instance plaintiff was bound to furnish the written guaranty and defendant was not required to say anything nor do anything until it was furnished and had he refused to deliver any clay under the contract, no matter what his reason therefor, he could, i? sued, have defended upon the ground that plaintiff had not complied with his part of the contract because ne had not furnished or tendered the written guaranty, but after having orally agreed with plaintiff to accept the arrangement by which in lieu of the written guaranty the remittances for clay shipped were to be sent to the bank and the bank pay defendant therefor and having acted upon that oral agreement for six months and delivered large amounts of clay that had been paid for in that way it would seem that common honesty and
fair dealing would require that if he did not want to furnish any more clay without the written guaranty he should have notified plaintiff of that fact and have given plaintiff an opportunity to furnish it. Had he done that and had plaintiff refused to furnish the written guaranty defendant would have a much better standing. Plaintiff certainly had not breached the contract at the time defendant refused to deliver any more clay. Up to that time defendant had accepted payment through the bank out of remittances for shipments of clay made by plaintiff in lieu of the written guaranty and then flatly refused to deliver any more clay purely on personal grounds. We are clearly of the opinion that had plaintiff then tendered a written guaranty and demanded the remainder of the clay, he would have been within the letter of his contract, for certainly, the time of executing the guaranty was not of the essence of the contract to such an extent that it could not be waived and defendant did waive it by not insisting upon it before he made any delivery. Having waived that provision t of the contract for six months and having made large deliveries of clay without it and having refused to make further deliveries merely because of personal feeling toward plaintiff and without any demand for the execution of the written guaranty, he should be held to have waived it up to that time and when sued for a refusal to furnish any more clay should not now be allowed to say that his refusal was justified because plaintiff had not furnished the writ ten guaranty. The essential parts of the contract were the duty imposed upon defendant to deliver the clay and the duty imposed upon plaintiff to pay for it. The provision for the execution of the written guaranty on the part of plaintiff was for the purpose of affording security to defendant that plaintiff would perform his part of the contract by making payment for the clay as the contract required he should. As long as defendant delivered clay to plaintiff and he paid for it the contract was being performed to the satisfaction of both parties.
We think defendant could have refused to deliver any more clay until the written guaranty was furnished but in order to justify á refusal upon that ground at that time, he should have notified plaintiff and have given him an opportunity to furnish the guaranty. Not having done that, we do not think he can now be heard to say that plaintiff had not tendered literal performance merely because he had not furnished or tendered something that defendant did not ask or want. Defendant having unconditionally refused to furnish any more clay, it would have been a useless formality for plaintiff to have tendered a written guaranty before filing suit. We do not think defendant can now avail himself of the fact that this guaranty was not furnished and assert it as a defense in this action.
The defendant objected to any proof about the arrangement with the bank to make payments on the ground that it was an. attempt to vary or change the provision of the written contract and further that if it were intended thereby to show a waiver of the requirement that plaintiff furnish a written guaranty, it was incompetent because waiver had not been pleaded. We do not think the evidence was competent for the purpose of showing a change in the terms of the contract. We do think that it was .competent on the question of waiver if the pleadings would admit proof of waiver. We agree with defendant that when waiver is relied on it should be pleaded. We are of the opinion also that, in fact, waiver was, to a limited extent, pleaded, and if that were the only attack upon the judgment in this case, we should be inclined to hold the pleading sufficient after verdict. While there was no direct allegation of waiver of that provision of the contract which required a written guaranty to be, given, there is an allegation that defendant delivered clay under the contract continuously from the 2nd day of December, 1922, to the 7th day of July, 1923, and that plaintiff paid for it as required by the contract. It was this course of business together with the arrange
ment with the bank that constituted waiver. Had this arrangement with the bank been pleaded, then all the facts constituting waiver would have been pleaded. When the facts are pleaded, it really adds nothing to a petition to allege as a conclusion to be drawn therefrom that the party thereby waived the provision of the contract to which the alleged facts apply. However, on a re-trial, the petition should he amended by making a direct allegation of waiver of the provision of the contract requiring plaintiff to furnish a written guaranty.
Objection was made to testimony of experts who drilled holes through the clay and then estimated the amount of clay in the pit. We think this evidence was competent. There was also objection to an expert witness using a plat and figures thereon to refresh his memory. We see no error in that provided the witness after refreshing his memory testifies from his own knowledge and not from information secured from the writing used to refresh his memory.
It is finally objected that there is no proof of substantial damages. ' That the measure of damages was the difference in the market value of the clay at the place of delivery and the contract price. If the property has a market value at the place of delivery the difference between that market value and the price agreed to be paid is the measure of damages. If there be no market value at the place of delivery and that fact he first shown then the value may he otherwise determined. The evidence in this case does not show the market value of the clay at the place of delivery neither does it show that there was no market value for clay of the character bought at the place of delivery and for that reason all other evidence of value was incompetent. On the showing-made plaintiff could not recover more than nominal damages. [Brown v. Trinidad Asphalt Mfg. Co., 210 Mo. 260, 262-264, 274, 109 S. W. 22.]
Judgment reversed and cause remanded.
Bradley
and
Bailey, JJ.,
concur.