BLAND, P. J.
(after stating the facts as above).— 1. Defendant contends that by plaintiff’s own evidence it is shown that he was not the real party in interest and that this fact having been alleged in the answer, the trial court should have sustained defendant’s instruction in the nature of a demurrer to the evidence.
The evidence of plaintiff shows that two franchises were obtained in Wichita by purchase, one a street railroad, purchased by a Mr. Woodman, the other an electric light franchise, purchased by a Mr. McKinney, but that the conveyance of both franchises was to the plaintiff and remained in his name until the parties in interest incorporated, which occurred in April, 1900; that after the incorporation he transferred the property to the corporation; that when the franchises were acquired, Woodman, McKinney, himself and several others were interested in their purchase and the purchases were made with a view of incorporation and with the intention that when incorporated he should transfer the property to the corporation; that the street railroad franchise acquired took in the street railways of Wichita, that they had to be reconstructed and their reconstruction was placed in his charge and was done under his supervision in his individual name, both before and after the corporation was formed; that he received all the moneys which the old rails and materials brought, and paid all the bills in the reconstruction by his individual checks, except about $40,000 paid out for new rails which was paid by the corporation’s eastern office.
By section 541, Revised Statutes 1899, a, trustee [512]*512of an express trust is authorized to sue in his own name. 'This section declares: “A trustee of an express trust, within the meaning of this section, shall be -construed to include a person with whom or in whose name a contract is made for the benefit of another.” According to plaintiff’s evidence, and there is none in the record to contradict him, the contract was made with defendant for the benefit of himself and his associates in the purchase of the Wichita franchises. As to these (his associates) he was clearly the trustee of an express trust, as defined by section 541, supra, and authorized to prosecute this suit in his own name. Snider v. Adams Express Co., 77 Mo. 523; Sawyer v. Railway, 156 Mo. l. c. 475; Springfield to use v. Weaver, 137 Mo. l. c. 671; Ellis v. Harrison, 104 Mo. 277; Chouteau v. Boughton, 100 Mo. l. c. 411; Gunnell v. Emerson, 73 Mo. App. 291; Harrigan v. Welch, 49 Mo. App. 496.
2. Defendant insists that for the reason the exact number of gross tons was not mentioned in the correspondence between plaintiff and defendant, there was no contract. The contract is definite and certain in respect to the material contracted for and the price to be paid for the two grades of rails. The quantity of each grade was estimated or guessed at. The rails were laid in the streets of Wichita and plaintiff testified that the defendant knew as much about them' as he did, when the contract was made. The correspondence shows that defendant knew the rails had to be taken up before they could be shipped' and that it accepted the plaintiff’s offer of an indefinite and somewhat uncertain number of tons of rails. The thing sold was agreed upon, to-wit, all the girder and T. rails to be taken up by plaintiff in the reconstruction of the street railroad in Wichita. 'This was a sufficient identification of the thing sold, besides the uncontradicted evidence is that the defendant accepted and paid for the scrap iron brought into the contract by the correspondence and it ought not be allowed, to accept a portion of goods that proved profitable [513]*513to it and refuse the remaining goods that were probably not profitable. It can not accept the beneficial portion of the contract and repudiate the balance, though it would cause it a loss.
3. It is further contended by defendant that the time for delivery is so indefinite as to invalidate the contract and that no time of delivery at all is mentioned in the contract. If nothing but plaintiff’s-telegram offering, prices and defendant’s acceptance is looked to for the terms of the contract, then there was no time whatever agreed upon for the delivery of the material. But the offer and acceptance must be interpreted by the preceding correspondence. Plaintiff had represented that he would be ready to deliver in carload lots at Wichita in from forty to sixty days. The defendant expressed its willingness to receive the rails in thirty, sixty or ninety days and the parties must be presumed to have had this correspondence in mind when the subsequent offer was made and accepted, and the contract, as to time of performance, be construed a contract to deliver in thirty, sixty or ninety days.
4: The court submitted to the jury for them to find whether or not there was a contract made. Defendant contends that this was error. When a party relies upon a writing.or a number of writings, to establish a contract, it is unquestionably the province of the court to determine from the writing or writings whether or not a contract was entered into and to instruct the jury not only as to its existence or non-existence, but also, if it finds there was a contract, to instruct the jury what it is and what the respective parties agreed to. But it is not reversible error to submit the question of the existence or non-existence of a contract made up by a writing or number of writings, if the jury, as was done in this case, find what the court should have found for them, to-wit, that there was a contract.
5. It is also contended by defendant that plain[514]*514tiff’s letters of March 28th and April 1st, stating that he would hesitate to ship any more rails unless defendant would inspect them or have them inspected, amounted to a repudiation or cancellation of the contract. These letters were induced by a previous one of defendant, in which it claimed first-class T. rails. The contract did not call for first-class relayers and plaintiff promptly informed the defendant that he had no first-class relayers for sale, and we think was justified in hesitating to ship without inspection. His letters certainly nowhere indicate a purpose on his part to repudiate the contract. He did not demand an inspection as a right under the contract, but asked it as a favor for his own protection and for the satisfaction of the defendant.
6. Defendant insists that in no event has plaintiff any right to recover more than $259.50, the loss of the five carloads of rails shipped April 24th, which defendant refused to receive or pay for. Defendant notified plaintiff by letter of April 24th, that it cancelled the contract. This letter was probably received on April 26th, and plaintiff testified that he still hoped the defendant would take the rails, and made no immediate effort to sell any of them, and made no sales until June 18th. The contention is- that he delayed for an unreasonable time to resell the rails and that he resold without notice to defendant.
The evidence of plaintiff shows that as soon as he became convinced that defendant would not take any more of the material, he at once made inquiry in regard to its market value; that the price was unsatisfactory and for this reason he made no sales until June 18th, when the price had become somewhat better.
He further testified that he did not want to sacrifice the material, but endeavored to protect both himself and defendant and held off the sales for this purpose, and when he did sell he obtained the full market value of the material.
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BLAND, P. J.
(after stating the facts as above).— 1. Defendant contends that by plaintiff’s own evidence it is shown that he was not the real party in interest and that this fact having been alleged in the answer, the trial court should have sustained defendant’s instruction in the nature of a demurrer to the evidence.
The evidence of plaintiff shows that two franchises were obtained in Wichita by purchase, one a street railroad, purchased by a Mr. Woodman, the other an electric light franchise, purchased by a Mr. McKinney, but that the conveyance of both franchises was to the plaintiff and remained in his name until the parties in interest incorporated, which occurred in April, 1900; that after the incorporation he transferred the property to the corporation; that when the franchises were acquired, Woodman, McKinney, himself and several others were interested in their purchase and the purchases were made with a view of incorporation and with the intention that when incorporated he should transfer the property to the corporation; that the street railroad franchise acquired took in the street railways of Wichita, that they had to be reconstructed and their reconstruction was placed in his charge and was done under his supervision in his individual name, both before and after the corporation was formed; that he received all the moneys which the old rails and materials brought, and paid all the bills in the reconstruction by his individual checks, except about $40,000 paid out for new rails which was paid by the corporation’s eastern office.
By section 541, Revised Statutes 1899, a, trustee [512]*512of an express trust is authorized to sue in his own name. 'This section declares: “A trustee of an express trust, within the meaning of this section, shall be -construed to include a person with whom or in whose name a contract is made for the benefit of another.” According to plaintiff’s evidence, and there is none in the record to contradict him, the contract was made with defendant for the benefit of himself and his associates in the purchase of the Wichita franchises. As to these (his associates) he was clearly the trustee of an express trust, as defined by section 541, supra, and authorized to prosecute this suit in his own name. Snider v. Adams Express Co., 77 Mo. 523; Sawyer v. Railway, 156 Mo. l. c. 475; Springfield to use v. Weaver, 137 Mo. l. c. 671; Ellis v. Harrison, 104 Mo. 277; Chouteau v. Boughton, 100 Mo. l. c. 411; Gunnell v. Emerson, 73 Mo. App. 291; Harrigan v. Welch, 49 Mo. App. 496.
2. Defendant insists that for the reason the exact number of gross tons was not mentioned in the correspondence between plaintiff and defendant, there was no contract. The contract is definite and certain in respect to the material contracted for and the price to be paid for the two grades of rails. The quantity of each grade was estimated or guessed at. The rails were laid in the streets of Wichita and plaintiff testified that the defendant knew as much about them' as he did, when the contract was made. The correspondence shows that defendant knew the rails had to be taken up before they could be shipped' and that it accepted the plaintiff’s offer of an indefinite and somewhat uncertain number of tons of rails. The thing sold was agreed upon, to-wit, all the girder and T. rails to be taken up by plaintiff in the reconstruction of the street railroad in Wichita. 'This was a sufficient identification of the thing sold, besides the uncontradicted evidence is that the defendant accepted and paid for the scrap iron brought into the contract by the correspondence and it ought not be allowed, to accept a portion of goods that proved profitable [513]*513to it and refuse the remaining goods that were probably not profitable. It can not accept the beneficial portion of the contract and repudiate the balance, though it would cause it a loss.
3. It is further contended by defendant that the time for delivery is so indefinite as to invalidate the contract and that no time of delivery at all is mentioned in the contract. If nothing but plaintiff’s-telegram offering, prices and defendant’s acceptance is looked to for the terms of the contract, then there was no time whatever agreed upon for the delivery of the material. But the offer and acceptance must be interpreted by the preceding correspondence. Plaintiff had represented that he would be ready to deliver in carload lots at Wichita in from forty to sixty days. The defendant expressed its willingness to receive the rails in thirty, sixty or ninety days and the parties must be presumed to have had this correspondence in mind when the subsequent offer was made and accepted, and the contract, as to time of performance, be construed a contract to deliver in thirty, sixty or ninety days.
4: The court submitted to the jury for them to find whether or not there was a contract made. Defendant contends that this was error. When a party relies upon a writing.or a number of writings, to establish a contract, it is unquestionably the province of the court to determine from the writing or writings whether or not a contract was entered into and to instruct the jury not only as to its existence or non-existence, but also, if it finds there was a contract, to instruct the jury what it is and what the respective parties agreed to. But it is not reversible error to submit the question of the existence or non-existence of a contract made up by a writing or number of writings, if the jury, as was done in this case, find what the court should have found for them, to-wit, that there was a contract.
5. It is also contended by defendant that plain[514]*514tiff’s letters of March 28th and April 1st, stating that he would hesitate to ship any more rails unless defendant would inspect them or have them inspected, amounted to a repudiation or cancellation of the contract. These letters were induced by a previous one of defendant, in which it claimed first-class T. rails. The contract did not call for first-class relayers and plaintiff promptly informed the defendant that he had no first-class relayers for sale, and we think was justified in hesitating to ship without inspection. His letters certainly nowhere indicate a purpose on his part to repudiate the contract. He did not demand an inspection as a right under the contract, but asked it as a favor for his own protection and for the satisfaction of the defendant.
6. Defendant insists that in no event has plaintiff any right to recover more than $259.50, the loss of the five carloads of rails shipped April 24th, which defendant refused to receive or pay for. Defendant notified plaintiff by letter of April 24th, that it cancelled the contract. This letter was probably received on April 26th, and plaintiff testified that he still hoped the defendant would take the rails, and made no immediate effort to sell any of them, and made no sales until June 18th. The contention is- that he delayed for an unreasonable time to resell the rails and that he resold without notice to defendant.
The evidence of plaintiff shows that as soon as he became convinced that defendant would not take any more of the material, he at once made inquiry in regard to its market value; that the price was unsatisfactory and for this reason he made no sales until June 18th, when the price had become somewhat better.
He further testified that he did not want to sacrifice the material, but endeavored to protect both himself and defendant and held off the sales for this purpose, and when he did sell he obtained the full market value of the material. It is the law that upon a breach of a contract of sale by the vendee, the vendor may at once, or within [515]*515a reasonable time, resell the property and recover the difference between the contract price and the net amount realized upon the resale, provided he give notice of the resale to the vendee. Rickey v. Tenbroeck, 63 Mo. l. c. 567, and cases cited; Logan v. Carroll, 72 Mo. App. 613. But if the vendor does not give notice to the vendee of the resale, the latter is not precluded thereby and the measure of the vendor’s damages will be the difference between the price agreed upon and the market value of the goods at the time and place agreed upon for their delivery, although they may have brought less than their market value a.t the resale. Black River Lumber Co. v. Warner, 93 Mo. 374; 2 Mechem on Sales, sec. 168; 2 Sedgwick on Damages (8 Ed.), sec. 555. We think the evidence tends to show, that under the circumstances plaintiff did resell within a reasonable time and that he obtained the market value of the material when he did resell, and realized more than he would have realized had he made the sale immediately after defendant repudiated the contract.
7. Defendant contends that plaintiff did not offer to deliver all the rails within the contract period. The evidence tends to prove that such was the case, but it is also in evidence that the delay was occasioned, in part at least, by the letter of defendant not to ship, by its demand for a quality of relayers not stipulated for in the contract, and its disinclination or refusal to inspect the rails, as requested by plaintiff, before shipment should be made, and we conclude that the plaintiff is not estopped by his failure to deliver the material within the contract period to recover damages for the loss he has sustained by reason of the breach of the contract on the part of defendant.
8. It is finally contended that the verdict is excessive. The trial court by its instructions to the jury, properly limited the damages to the loss on two hundred tons of girder rails and fifty-five and forty-eight hundredths tons of 35-lb. relaying T. rails. The plain[516]*516tiff’s evidence shows that the losses sustained by him are. as follows:
On 5 cars of girder rails shipped to St. Louis. .$259.50
On the sale of 5 tons of T. rails.............. 16.00
On the sale of 31.85 tons of T. rails.......... 222.95
On the sale of 110 tons of mixed rails........440.00
On the sale of 20 tons of girder rails......... 160.00
Making a total loss of.................J$l,098.45
That he gained over the contract price, $19.20 on a sale of eight tons of T. rails, and $25.80 on a sale of ten and one-half tons of T. rails, making a gain of $45 over and above the contract price on the sale of eighteen and one-half tons of T. rails, leaving a net loss of $1,053.45, to this amount the court instructed that interest at six per cent for one year, nine months and three days should be added; with this interest to the principal, the recovery should have been for $1,164.05.
It is contended by appellant that this was error. There was no fixed sum agreed upon to be paid. This amount had to be ascertained by the number of tons of relaying and girder rails the plaintiff would have for delivery after taking them up. The market price of the rails had declined at the time defendant breached the contract and it was reasonably certain that the breach would occasion damage to plaintiff, but the amount of the damage was uncertain, not agreed upon, but the elements by which to ascertain the damages were not wholly at large, as in actions ex delicto. However, the defendant had no means of ascertaining, nor could it be ascertained, what the damages would be until the number of tons of each grade of rails had been ascertained; after this was done, no notice of the fact was given to the defendant, nor was any demand made upon it for payment of the difference between the contract price and the market value at the time of the breach, and the court properly restricted the computation of interest to [517]*517the commencement of the suit. But it is contended by the appellant that no interest at all should have been allowed, and cites the case of Wiggins Ferry Co. v. Railway, 128 Mo. 224, as supporting this contention. The action in that case, as in this, was for breach of contract, but the damages were for loss of profits the plaintiff would have made in its ferry business had the defendant lived up to its contract. The damages sustained in the case in hand are the difference between the contract price of goods sold and the market value of the same goods at the time defendant refused to receive them under its contract. These damages accrued under a written contract and the plaintiff was entitled to interest thereon under the express provisions of section 3705, .Revised Statutes 1899. But in the present case, the damages assessed by the jury are' $285.95 in excess of the amount of loss with interest, as shown by plaintiff’s evidence. It is therefore considered by the court that unless the plaintiff, within ten days from the date of the filing of this opinion, remit $285.95 from his judgment, the same will be reversed and the cause remanded for new trial; but if the remittitur be entered within the time herein allowed, the judgment for $1,164.05 will stand affirmed.
Reyburn and Goode, JJ., concur.