abundant sustaining the right of the employer to sue for his damages before erecting the buildings, as is shown by the following cases: King v. Nichols, 53 Minn. 453, 55 N. W. 604; Cincinnati, etc., Ry. Co. v. Carthage, 36 Ohio St. 631; Taylor v. Ry., 56 Cal. 317; Laraway v. Perkins, 10 N. Y. 317; Hawley v. Florsheim, 44 Ill. App. 320; American Surety Co. v. Woods, 105 Fed. 741746, 45 C. C. A. 282; 3 Sutherland on Damages (3d Ed.) § 699.

The petition, after prefatory allegations alleging the contract, etc., alleges the breach thereof as follows: "Plaintiff states that defendant has failed and refused to comply with his said contract to erect said cottages for said sum of $3,300, and has renounced his said contract, and has informed plaintiff that he will not comply with same, or with any part thereof. Plaintiff states that defendant's failure to comply with his said contract to erect cottages for said sum entails a great loss upon plaintiff; that he has given public notice, and has received bids for said construction of said cottages, and that the lowest bid submitted amounts to $3,860, which sum is the least at which the erection of said cottages can be procured; that defendant's failure to comply with his contract entails a loss upon this plaintiff of five hundred and sixty dollars, for which sum plaintiff prays judgment and for costs." Under this allegation the trial court permitted the respondent to prove what would be the reasonable cost of erecting the buildings, and that such cost would be actually $300 more than the price at which respondent had contracted to erect them, and thus arrived at the measure of damages. Appellant contends that, inasmuch as there was no allegation of the reasonable cost of the buildings in the petition, the court erred in admitting such testimony. Under our Code, a plain and concise statement of the facts constituting plaintiff's cause of action, provided, of course, the relief prayed thereon is in accordance with the rules of law, is all that is required of the pleader. The petition states the facts constituting the cause of action in a plain and concise manner, and then goes somewhat into detail, and shows that respondent took some pains by advertising, etc., in order to discover just how much it would cost him to have erected the buildings for which he had contracted, and just what was the value of the buildings he was entitled to receive from defendant, and thereby discover the true extent of his damages by reason of the appellant's default, and by this process, from the information contained in the bids which came as a result of his advertising, he arrived at the conclusion that he was entitled to four cottages for $3,300 at the hands of defendant, which were of the value of $3,860, and that defendant, in failing to furnish him $3,860 in value for the agreed $3,300, had entailed a loss of $560 upon him.

This is the story he pleads in

the petition. The purport of the whole matter is that the prayer is a prayer for damages under the proper rule of law in such case, the measure being the difference between the contract price and the reasonable cost of the completed buildings. This is precisely what plaintiff prays in the petition. Plaintiff, not having erected the buildings, could not plead their actual cost, nor could he plead their reasonable cost or value, except from estimates, which he did, and the $560 damages asked is the difference between the contract price and the actual value of the completed buildings, as he believed from the bids and estimates he had received. To be sure, it was unnecessary for him to plead the matter of advertisement and having received bids, and to disclose by his petition how he became possessed of the information to the extent of his damage; yet the petition is not bad because he did so plead, as the proper measure of damages is invoked thereby. The learned trial judge did not err in holding the allegation of the petition was broad enough to receive proof of the reasonable cost of erecting such buildings. Appellant says that he "could, perhaps, have brought a dozen witnesses to show that the contract price would be the reasonable cost of the buildings," had he known the court would permit evidence of the reasonable cost under the allegation. If appellant could have brought a dozen witnesses, it certainly was his duty to do so, for it was the law, and not the petition, that made it proper for the court to permit the introduction of evidence as to the reasonable cost of the buildings. This certainly is not the fault of the allegation. The law fixes the reasonable cost as the extreme by which the damage was to be measured. The allegation of the petition could certainly not mislead appellant as to the law of the case. It would be unnecessary to notice the objection further than to say that it appears from the record that appellant's counsel on the trial examined witnesses on the same theory-that is, upon the reasonable cost of erecting such buildings-and participated in that which he now complains of as error. It is well settled that, where the complaining party participates in the alleged error in the court below, he cannot be heard to complain thereon on appeal. Johnson v. Hutchinson, 81 Mo. App. 293; Phelps v. City of Salisbury, 161 Mo. 1, 61 S. W. 582; Whitmore v. Sup. Lodge K. & L. of H., 100 Mo. 36, 13 S. W. 495.

It is contended by appellant that, inasmuch as the wife of the respondent owned the lands upon which the buildings contracted for were to be erected, therefore any damages resulting from a breach of such contract would be damages accrued to the wife, the real owner, and not to this re spondent; therefore respondent cannot recover. This contention is based largely upon appellant's other contention pertaining to the

measure of damages-that the damages resulting from the failure to erect the buildings was damage to the realty, and that the true measure thereof was the difference in value of such real estate with and without the buildings thereon. This proposition having been settled against him, we take it that the last contention now under consideration would not be seriously insisted upon. The contract sued upon is a personal obligation between appellant and respondent in this case. Respondent had the right, if he saw fit, to contract for, and have erected on the lands of his wife, the several houses mentioned, and donate them to his wife. The relationship of husband and wife is a sufficient consideration therefor; and, besides, he would necessarily receive the indirect benefit therefrom by virtue of the benefit to his wife, and no good reason can be seen why he would not be permitted to contract for the construction of buildings upon her property at his cost and recover for a breach of such contract. This was the view expressed by the learned trial court in an able written opinion, which is printed in the record, and we think it is sound. But, aside from this, the testimony shows that at the time the contract was entered into the wife was present in person, participated in the conversation about the buildings, and gave some orders and directions about the plans and specifications thereof; that the contract was signed and closed by her husband in her presence, with her full knowledge and consent. Certainly, under these circumstances, appellant could not be aggrieved, so far as his rights are concerned, as the law clearly would declare the husband the agent of the wife therein, and, if the contract was made for her benefit, as contended by appellant, it is well settled that the law will declare the husband in such case the trustee of the wife, and it is clearly competent for the agent or trustee with whom the contract is made to sue in his own name, or for his undisclosed principal, with whom, in point of law, the contract was made (Snider v. Express Co., 77 Mo. 523; Rogers v. Gosnell, 51 Mo. 466; Nicolay v. Fritschle, 40 Mo. 67; Chouteau v. Boughton, 100 Mo. 416, 13 S. W. 877; Harrigan v. Welch, 49 Mo. App. 496); and under the following statute respondent can maintain this suit: "An executor or administrator, a trustee of an express trust, or a person expressly authorized by statute, may sue in his own name without joining with him the person for whose benefit the suit is prosecuted. 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." Rev. St. 1899, § 541.

If appellant's contention that the wife is the real party in interest under this contract is correct, then under the very terms of the

statute the circumstances of this case endow respondent with all the attributes essential to maintain this suit in his own name, the law declaring him a trustee for the benefit of his wife. Aside from this statute, however, it is familiar law in this state that the agent may enter into a contract representing an undisclosed principal, and may maintain a suit in his own name in enforcing such contract, it being wholly immaterial whether the principal is known or unknown during the transaction, or whether the party supposed he was dealing with the agent personally and on his own behalf. Randolph v. Wheeler, 182 Mo. 145, 81 S. W. 419; Kelly v. Thuey, 143 Mo. 423, 45 S. W. 300; Darnell v. Lafferty (Mo. App., decided at this term, but not yet officially reported), 88 S. W. 784. There is no merit in this contention of the respondent, and it is therefore overruled.

The case was well and carefully tried. Finding no error in the record, the judgment is affirmed. All concur.

HARDWICK v. AMERICAN CAN CO. (Supreme Court of Tennessee. July 12, 1905.) 1. SALES-CONSTRUCTION OF CONTRACTS-OBLIGATION OF BUYER.

Where a contract for the manufacture and sale of stoves fixes the price of the stoves, or a means of ascertaining the price, and obliges the seller to "ship to the order of" the buyer 5,000 stoves within a year from date, the buyer is bound to receive the number of stoves specified within the prescribed period.

[Ed. Note.-For cases in point, see vol. 43, Cent. Dig. Sales, § 445.]

2. SAME-DEFINITENESS OF CONTRACT.

Defendant's predecessor in business had for a number of years been purchasing stoves from complainant, and had had several contracts with complainant for large quantities of stoves, the last of which was in force when defendant succeeded to the business, and was carried out by defendant. Subsequently defendant entered into a contract with complainant which identified defendant with its predecessor, and bound complainant to ship to the order of defendant "5,000 or more stoves" within one year from date. No specification as to the kinds or assortments of stoves was made, but defendant was covering the same territory as its predecessor, had agreed to deal in complainant's stoves exclusively, and the stove trade did not vary from year to year, but dealers required the same kinds of stoves and the same proportional assortment of kinds each year. Held, that the contract was not too indefinite to be susceptible of enforcement, but was to be construed in the light of the previous relations and dealings between complainant and defendant's predecessor, as requiring the supply of stoves to be of the kinds and of the assortment supplied under previous contracts.

3. SAME CONSTRUCTION OF CONTRACTS-INTENT OF PARTIES.

For the purpose of discovering the intention of parties to a contract, the court must view the situation of the parties and their surroundings, so as to place itself in the position which they occupied, and see the things spoken of in the contract as they saw them.

[Ed. Note.-For cases in point, see vol. 11, Cent. Dig. Contracts, § 730.]

4. SAME-EXECUTORY AND EXECUTED CONTRACTS-DISTINCTION.

Where parties agree upon the terms of a sale of personalty, and annex no conditions to the contract, the contract becomes an executed one, and title to the property passes without any formal delivery or payment of money; but when it is contemplated that something be done to complete the sale, such as weighing, selecting, delivering, or some other act, the contract is executory, and title does not pass until the specific goods are ascertained and appropriated in the mode agreed upon.

[Ed. Note. For cases in point, see vol. 43, Cent. Dig. Sales, §§ 162-170.]

5. SAME-BREACH OF CONTRACT-DAMAGES

RESALE.

Where a contract of sale, either executed or executory, is broken by the buyer, and the seller determines upon a resale, and makes the same fairly, and after reasonable notice and with proper diligence, the difference between the price realized on the resale and the contract price, plus interest and expenses of sale, becomes the amount due from the buyer to the seller, and is conclusive on both parties on the question of damages.

[Ed. Note. For cases in point, see vol. 43, Cent. Dig. Sales, §§ 1101, 1107.] 6. SAME-ACTIONS-DAMAGES RESALE AFTER SUIT.

ELECTION

A seller who seeks to recover from the buyer, after breach of contract by the latter, damages as ascertained by a resale, must sue for such damages, and cannot sue for damages generally, and then, by virtue of a resale made after the commencement of suit, recover damages on the basis of such resale.

7. SAME-GENERAL DAMAGES-MEASURE.

The measure of damages, not liquidated by a resale, for the breach by a buyer of a contract of sale, is the difference between the contract price and the market price at the time and place of delivery.

[Ed. Note. For cases in point, see vol. 43, Cent. Dig. Sales, §8 1098-1106.]

8. SAME-EVIDENCE-PRICE REALIZED ON RE

SALE.

In a suit by the seller to recover from the buyer the difference between the contract price of the goods and the market price at the time and place of delivery, the price realized upon a resale of the goods by the buyer may, if otherwise competent, be given in evidence on the question of market price, but is not conclusive. [Ed. Note.--For cases in point, see vol. 20, Cent. Dig. Evidence, § 271.]

Appeal from Chancery Court, Hamilton County; T. M. McConnell, Chancellor.

Bill by J. H. Hardwick, trading under the name of the Cleveland Stoveworks, against the American Can Company. From a decree for complainant, defendant appealed, and, the appeal being referred to the Court of Chancery Appeals, which affirmed the decree, defendant appeals from the decree of the Court of Chancery Appeals. Reversed.

Wheeler & Trimble and White & Martin, for appellant. Brown & Spurlock and Pritchard & Sizer, for appellee.

NEIL, J. The complainant, trading under the name of the Cleveland Stoveworks, entered into the following contract with the defendant company, viz.:

"The Cleveland Stoveworks, of Cleveland, Tennessee, contracts and agrees to ship to

the order of the American Can Company of Atlanta, Georgia, five thousand or more stoves, which are to be shipped within one year from date." There were other provisions not necessary to set forth here, but which, so far as may be required, will be stated later, in their appropriate place.

The bill in the present case was filed to recover damages for the breach of this contract. It alleged that the complainant had manufactured the 5,000 stoves, and had tendered them to the defendant, but that the latter had taken only 1,191, declining to receive the remaining stoves.

The defenses, so far as necessary to be here stated, were that the defendant was not bound to order any of the stoves at all; that, under the contract, it had the option to take the whole number named, or any less number, or none; secondly, that the contract was too indefinite for enforcement.

The damages claimed in the bill were laid at $15,000. The case was tried before the chancellor, and resulted in a judgment in favor of the complainant for the sum of $5,500. When the case reached this court on appeal, it was referred to the Court of Chancery Appeals. That court added two items, amounting to something over $100 to the recovery, and affirmed the decree of the chancellor. From the decree of the Court of Chancery Appeals an appeal has been prayed and prosecuted to this court, and errors have been assigned here.

The first error assigned makes the point that the Court of Chancery Appeals erred in refusing to sanction the first defense above set out.

There was no error in the matter complained of. The contract, in portions which we have not quoted, fixed the price of the stoves, or a means of ascertaining the price. The wording of the instrument which we have quoted is peculiar, it is true, in that the obligation is, in terms, only upon the complainant "to ship to the order of" the defendant so many stoves; but we think that no other conclusion can be reached than that the complainant was to furnish and the. defendant was to receive at least 5,000 stoves within the time limited-one year from the date of the contract. The obligation of the complainant to furnish must in sound reason find its correlative in a corresponding obligation on the part of the defendant to receive.

In order to a proper understanding of the second defense, it is necessary that we should state the facts found in respect thereof by the Court of Chancery Appeals.

That court finds that the defendant, American Can Company, had purchased the plant and business of the Conklin Factory, located at Atlanta, Ga., and continued the business of the latter concern at the same place; that for 10 years prior to the date at which the Conklin Factory was purchased by the

defendant the complainant had been selling stoves to the Conklin Factory, and had had several contracts with that organization, each for 5,000 stoves, the last of which was made on August 3, 1900, and was in force when the Conklin Factory was purchased by the defendant company, and that the latter assumed and carried out this contract, the complainant furnishing thereunder 5,000 stoves, or more; that, after the making of the contract last mentioned, complainant proceeded with the work of making stoves of different kinds, such as he thought would be suitable to the trade, and of such patterns as he had previously sold to the Conklin Factory.

The Court of Chancery Appeals further finds that, at the expiration of the contract last referred to, complainant addressed a letter to the defendant, inclosing the draft of a new contract, and on June 19, 1901, he again wrote, asking a return of the paper as soon as possible, assigning as a reason for the request that he wished to be prepared with an adequate amount of iron for the making of the stoves; that, after a number of letters had passed, the defendant, through its proper officer, said it was willing to make the contract as soon as they could agree upon the price of No. 2 pig iron, which regulated the price of the stoves; that after an agreement had been reached upon this subject the writing was executed and returned to the complainant.

It is further found that, after the execution of the writing, complainant proceeded to manufacture stoves of about 20 different sizes and kinds, as embraced in the contract; that defendant gave no specifications as to the kind it wished, and, therefore complainant took the sales he had previously made to the Conklin Factory for previous years, and made an estimate for the existing contract on a basis of the average taken in such previous years; "that complainant acted upon this theory, and adopted this method for ascertaining what assortment defendant would have ordered, had it complied with the contract (that is, had the defendant taken the assortment ordered by it [or its predecessor] for previous periods, and under prior contracts), thereby assuming that the same assortment would be required under the present contract, inasmuch as the defendant was supplying the same territory covered by previous contracts; that defendant was to order and take from complainant all the stoves necessary to supply for the term agreed upon the trade of the Conklin Factory, the defendant expressly stipulating that it would not handle, buy, or sell the stoves of any other manufacturer during the existence of the contract; that, taking one year with another, a dealer will sell practically the same assortment of sizes each year, and that, where a manufacturer has supplied a wholesale dealer for a number of years, he would become familiar with the

* *

assortment the purchaser would require, and that the number of stoves would be taken in assorted sizes"; that the defendant was to take its entire requirement of stoves from complainant during the time stated in the contract, and "in such an assortment as to sizes and kinds as defendant needed to supply its trade"; that the parties themselves, by their conduct and correspondence construed the contract as requiring the defendant to order and receive at least 5,000 stoves during the time fixed in the contract, and that complainant was bound to ship that number to defendant's order within the year; that both parties to the contract so under stood it.

In addition to the foreging findings, we shall now set out certain clauses of the written contract sued upon not previously copied. They are as follows:

"In consideration of the agreement or contract of the Cleveland Stoveworks, as aforesaid, the said Conklin Factory, of the American Can Company, agrees and binds itself not to handle, buy, or sell, or offer to buy or sell, stoves from any manufacturer, jobber, commission man, or broker, from and after this date, for a period of one year, unless and provided, the Cleveland Stoveworks are unable to fill the orders of the Conklin Factory, of the American Can Company, with a reasonable degree of promptness, and in that event reasonable concessions will be made as to the quantity to be taken and said Cleveland Stoveworks in consideration of the agreement of the Conklin Factory, of the American Can Company, agrees not to sell stoves in the State of Georgia to any other party or parties, unless the sale is made with the permission and full consent of the Conklin Factory, of the American Can Company, within a period of twelve months from date."

*

It will be perceived from the designation of the contracting parties in the foregoing exIcerpt that the defendant company identifies itself with the Conklin Factory, treating itself as a continuation of that concern, in respect of the business to be transacted, al though the contract was signed and executed in the name of the American Can Company.

The question arising on the foregoing facts is whether the contract is sufficiently definite for enforcement.

The following authorities will shed light upon the inquiry:

It has been held that a contract to supply the requirements of a party during a fixed period does not mean simply so much of the article mentioned as he may choose to take, but so much as his business may need and require. Thus it was held that a contract by a lumber company for its requirements of coal for a certain season was not void for uncertainty and want of mutuality, when it was meant to call for the amount of coal which the corporation should need in its business

for the season, not merely what it might choose to require. The court said that, when a contract is susceptible of two constructions, that one should be adopted which will give operation to it, rather than one which will render it inoperative; also that a contract should be construed in such a way as to make the obligations imposed by its terms mutually binding upon the parties, unless such construction is wholly negatived by the language used. Minnesota Lumber Co. v. Coal Co., 160 Ill. 85, 43 N. E. 774, 31 L. R. A. 529. In Wells v. Alexandre, 130 N. Y. 642, 29 N. E. 142, 15 L. R. A. 218, the plaintiff made a proposition by letter to "furnish" certain steamers owned by defendant with coal for the year 1888 at a stipulated price, which offer defendant accepted by letter. There after, and until about the middle of the year, plaintiff did furnish defendant all of the coal required for the use of the steamers named, and then the defendant sold the steamers, and ordered no more coal, whereupon the plaintiff sued for damages for breach of the contract. It was held that the contract bound plaintiff to furnish, and defendant to order and pay for, all the coal which would be required by the steamers mentioned during the year covered by the contract, and while the amount was not fixed, and could not have been at the time the agreement was made, yet it was ascertainable by its terms, and therefore certain within the maxim, “Id certum est quod certum reddi potest." s. C., 15 L. R. A. 218. It was also said in this case that the fact that the defendant deemed it best to sell the steamers could not be permitted to relieve him of the obligation to take the coal which the ordinary and accustomed use of the ships required; that the provisions of the agreement did not admit of a construction that it was to terminate in the event of a sale or other disposition of the ships by the defendant. 130 N. Y. 646, 29 N. E. 142, 15 L. R. A. 218.

A contract between a manufacturer of pig iron and one engaged in a business requiring the use of pig iron "that the former will supply to the latter, and the latter will purchase from him, all the pig iron which he will need, use, or consume, in his business." for a fixed period, was held valid and binding, and required the purchaser (the appellee) to take "such a quantity of pig iron, in view of the situation and business of appellee, as was reasonably required and necessary in its manufacturing business." Nat. Fur. Co. v. Keystone Mfg. Co., 110 III. 427.

A contract by one person to sell another "all the straw he has to spare, not exceeding three tons," was held valid and binding, and it was held that the quantity could be shown by parol evidence. Parker v. Pettit, 43 N. J. Law, 512.

And a contract to furnish a canning fac"all the cans they will use for packing eir factory" during a certain period is

valid and binding. E. G. Daily Co. v. Clark Co., 128 Mich, 591, 87 N. W. 761.

So, in a contract to buy "all the ice neces sary" to carry on the purchaser's business during a stipulated period, the quantity is measured by the necessities of the business, which is presumed to continue for the time agreed on. Hickey v. O'Brien, 123 Mich. 611, 82 N. W. 241, 49 L. R. A. 594, 81 Am. St. Rep. 227.

A contract to furnish "all the tire steel * which will be used in the buyer's works" within a fixed period, not to exceed fourteen thousand sets, not to be less than ten thousand sets, binds the purchaser to take and the seller to furnish "the quantity reasonably required for use in the buyer's works up to the date named, within the amounts specified." Staver Carriage Co. v. Park Steel Co., 104 Fed. 200, 43 C. C. A. 471.

A contract whereby one party agrees to sell, and the other to buy, all the oil which the purchasers "may require for their own use for a period of twelve months," was held valid and binding on both parties; it appearing that the purchasers owned a manufacturing plant at which oil was used, and parol evidence being admitted to show "its daily capacity for the consumption of such oil as was ordered." The written contract covered three different grades of oil at as many different prices, neither the total quantity nor the proportions of the different grades being specified; but the court held that, when the contract was "read in the light of the previous business relations of the parties," it was plain that it meant that the purchaser "should buy what oil it should require for its use in its manufacturing business." Manhattan Oil Co. v. Richardson Lubricating Co., 113 Fed. 923, 51 C. C. A. 553.

sor.

The substance of the complainant's contention is that when the parties made the contract they had in mind some standard by which their conduct thereunder was to be | regulated, and that that standard must be found in the previous relations existing between the complainant and the defendant's immediate predecessor, which it had incorporated into itself, and with the defendant itself in its assumption and executing of the last preceding contract with such predecesIt was known, of course, and figured in the calculations of the parties, that the complainant was manufacturing 20 different kinds of stoves, that he had patterns therefor, and that his business was of the character thus indicated. It was known also that the defendant was buying to supply a special character of trade, and that the stove business was uniform, in that, one year with another, the same trade would take about the same assortment of grades and sizes. Hence it is seen that the character, kind, and quality, in short, the assortment, of stoves covered by the contract, all lay within reasonable limits, and could be ascertained with reason