Weber Implement Co. v. Acme Harvesting Mach. Co.

• Citation: 187 S.W. 874,268 Mo. 363
• Decision Date: 02 June 1916
• Docket Number: No. 17904.,17904.
• Parties: WEBER IMPLEMENT CO. v. ACME HARVESTING MACH. CO.
• Court: United States State Supreme Court of Missouri

187 S.W. 874

268 Mo. 363

WEBER IMPLEMENT CO. v. ACME HARVESTING MACH. CO.

No. 17904.

Supreme Court of Missouri. Division No. 1.

June 2, 1916.

Opinion Modified and Motion for Rehearing Denied July 3, 1916.

Appeal from Circuit Court, Jackson County; O. A. Lucas, Judge.

Action by the Weber Implement Company against the Acme Harvesting Machine Company. From a judgment for plaintiff for a nominal amount, it appeals. Reversed and remanded, with directions.

Morton Jourdan, of St. Louis, and Sparrow, Page & Rea, of Kansas City, for appellant. New, Kennish & Krauthoff, Maurice H. Winger, Arthur Miller, and P. E. Reeder, all of Kansas City, for respondent.

BOND, J.

I. This cause was appealed to the Kansas City Court of Appeals and transferred to this court for the reason that the amount involved exceeded the jurisdiction of that court (155 S. W. 1116).

The plaintiff, the Weber Implement Company, a Missouri corporation located at St. Louis, Mo., and doing a jobbing business in farm machinery, on November 7, 1905, entered into a written contract with defendant, the Acme Harvesting Machine Company, an Illinois corporation, manufacturing farm machinery at Peoria, Ill., whereby the latter agreed to manufacture certain mowing machines to be specially branded "Koenig Buckeye," and the former agreed to purchase same at specified prices and dates of delivery during the years 1906, 1907, and 1908. By said contract it was agreed that plaintiff should order 1,000 of the above mowers yearly, which were to be manufactured and ready for shipment not later than May 1st of each year. In the clause setting out the manner and time of payment, the plaintiff agreed, upon receipt of a shipment of mowers, to execute notes, without interest before maturity, payable one-third September 10th, one-third October 10th, and the final third on November 10th, of each year, and which should be subject to a discount of 3 per cent. for cash, if paid by July 1st of that year. Defendant did not manufacture, nor did plaintiff receive, the specified number of mowing machines during the years 1906 and 1907; but there is no controversy here as to the damages growing out of the failure in this regard; for plaintiff limits its demand to a recovery of such damages as it sustained by reason of the failure to manufacture and deliver the 1,000 machines covered by the contract for the third year, 1908. On November 25, 1907, defendant wrote plaintiff, declining to furnish any of the thousand mowers which it had agreed to furnish during 1908, claiming that the contract of November 7, 1905, had been mutually abandoned and a new or modified contract entered into under date of October 12, 1907, and that plaintiff had violated the terms of the latter contract. Plaintiff insisted that the contract of November 7, 1905, had not been abandoned nor modified, and instituted this action to recover damages in the sum of $7,940, sustained by reason of defendant's failure to manufacture and deliver the thousand mowers during the year 1908. Plaintiff also alleged in its petition that it had suffered a further loss because of defendant's breach of its contract in being prevented from making profits on the sale of kindred goods which of necessity would have been used with said mowers, including extras, repairs, fixtures, etc., and which would reasonably have amounted to the sum of $5,250.

Defendant's answer contained two counts, the first averring that the contract of November 7, 1905, had been abrogated and a new or modified contract entered into, and that plaintiff had violated this latter contract, thereby releasing defendant from any liability. The second count was a counterclaim in which it was alleged the contract of 1905 had been abandoned; that plaintiff had violated the terms of this new contract, and as the result thereof defendant had been damaged in the sum of $15,093. In its last-amended answer this counterclaim was abandoned and no evidence was offered in support of it.

By agreement of the parties the cause was referred to Judge Henry C. Timmonds to hear and report on the facts and the law. The referee thus stated the issues:

"The pleadings admit the execution of the contract of November 7, 1905, but they present the following primary issues: (1) Was said contract mutually abandoned and a new or modified contract entered into in lieu thereof as alleged in defendant's answer? (2) Did defendant violate the contract of November 7th, as alleged in plaintiff's petition?"

He then found as a fact:

"That the contract of November 7, 1905, was not mutually abandoned and that no new contract was entered into in lieu thereof. That the defendant violated and broke said contract of November 7, 1905."

On the question of damages the referee found that on November 25, 1907, defendant violated its contract by announcing to plaintiff its refusal to deliver any of the thousand mowers in 1908, but that defendant manifested a disposition to assist plaintiff in filling any reasonable orders it might have taken up to that time, and proposed to furnish the required number of mowers for cash, provided plaintiff would give specifications and shipping directions at once. The referee also held that, as a matter of law, it was plaintiff's duty to have accepted this offer, notwithstanding the fact that the contract itself provided that said machines were to be sold on credit. The referee then found the loss at $1,828.50, being what plaintiff would have profited on the contemplated resale of 230 mowers which defendant's default prevented, and reduced it to the sum of $399.10, the difference being the amount plaintiff could have saved had it accepted defendant's proposition to fill certain orders for cash.

Plaintiff filed its exceptions to the report of the referee, and on the hearing of these exceptions the trial court approved the referee's findings of fact but disapproved his conclusions of law, and rendered judgment in favor of plaintiff for $1. Plaintiff, after unavailing motions for new...