Durasteel Co. v. Great Lakes Steel Corp.

• Citation: 205 F.2d 438
• Decision Date: 20 July 1953
• Docket Number: No. 14751.,14751.
• Parties: DURASTEEL CO. v. GREAT LAKES STEEL CORP.
• Court: United States Courts of Appeals. United States Court of Appeals (8th Circuit)

205 F.2d 438 (1953)

DURASTEEL CO. v. GREAT LAKES STEEL CORP.

No. 14751.

United States Court of Appeals Eighth Circuit.

June 29, 1953.

Rehearing Denied July 20, 1953.

George C. Willson, III, St. Louis, Mo. (James S. McClellan, and Willson, Cunningham & McClellan, St. Louis, Mo., on the brief), for appellant.

John O. Hichew, St. Louis, Mo. (Harold I. Elbert and Thompson, Mitchell, Thompson & Douglas, St. Louis, Mo., on the brief), for appellee.

Before GARDNER, Chief Judge, and SANBORN and JOHNSEN, Circuit Judges.

GARDNER, Chief Judge.

This was an action brought by appellant to recover $575,000.00 as damages for the alleged breach of two contracts for the purchase and sale of certain steel. We shall hereafter refer to the parties as they were designated in the trial court. It was alleged in the complaint that late in 1945 and early in 1946 the parties hereto entered into two contracts by means of purchase orders duly assented to by defendant for the delivery to plaintiff by defendant of 2,035 tons of carbon steel and 4,565 tons of Hi Tensil steel; that although the contracts did not specify a definite time for deliveries it was implied that delivery would be made within a reasonable time; that defendant delivered and plaintiff accepted and paid for 915 tons of carbon steel and 2,100 tons of Hi Tensil steel; that defendant repudiated the Hi Tensil steel contract on April 10, 1947 and that it refused to complete the carbon steel contracts although requested so to do.

Defendant by answer admitted the execution of the contracts but denied their breach. For further answer it alleged that on September 16, 1948, plaintiff agreed in writing that all prior orders, with one exception not here material, should be cancelled and superseded in consideration of defendant's accepting certain new purchase orders; that thereafter shipments were made under said new purchase orders until August 18, 1949, when plaintiff requested in writing formal cancellation of all existing purchase orders it had with defendant without reserving a claim for any breach thereof, by reason of which defendant was relieved of any liability for the alleged breach of the contracts sued upon or any liability for their breach.

After the issues had been joined by the pleadings defendant interposed a motion for summary judgment in which it charged that the pleadings and affidavits on file showed that there was no genuine issue as to any material fact and that defendant was entitled to judgment as a matter of law. It was alleged in the motion that the contracts for the breach of which the action was brought were on September 16, 1948, by mutual agreement of the parties thereto cancelled and superseded by new contracts which as a matter of law then constituted the only contracts between the parties and released the parties from the obligations of the contracts upon which the action was brought.

The motion further alleged that the new contracts were at plaintiff's request formally cancelled on August 18, 1949, without express reservation of claim for damages previously sustained. The allegations of the motion were supported by affidavits of defendant's officers.

In its opposition to the motion for summary judgment plaintiff urged that there was a genuine issue as to a material fact because no acknowledgments of the new orders of September 16, 1948, were received by it and hence no new contracts ever came into existence; that a genuine issue as to a material fact existed in that while it was the intention of the parties to readjust and compromise defendant's liability on the carbon steel contracts it was not the intention of the parties to adjust defendant's liabilities under the Hi Tensil steel contracts and that even if the parties had entered into new contracts on September 16, 1948, plaintiff's request of August 18, 1949 for formal cancellation would not have constituted an implied waiver of damages for breach thereof. Plaintiff submitted affidavits of its officers supporting its assertion that no acknowledgments of the orders of September 16, 1948, were received by it.

The material facts disclosed by the pleadings, affidavits, and motion considered on defendant's motion for summary judgment may be stated as follows:

On September 16, 1948, plaintiff sent to the defendant through the mail a letter signed by its vice-president reading as follows:

"In consideration of the acceptance of purchase orders 9449 & 9450 for 675 tons of prime steel and 850 coil ends, we agree that all prior orders given to you, with the exception of our purchase order No. 5207, shall be cancelled and superseded."

This letter was received by defendant September 18, 1948. Defendant claimed that the orders referred to in this letter were acknowledged on the regular form used by defendant for accepting such orders for customers and that acknowledgment was mailed to plaintiff. Defendant by affidavit showed that 26 shipments of steel were made pursuant to purchase order 9450 and 5 shipments pursuant to purchase order 9449 and that plaintiff accepted and paid for all such shipments. Defendant's affidavits also showed that on several occasions plaintiff requested changes in shipping dates and size of steel on these purchase orders.

Thus on October 18, 1948, plaintiff wrote defendant as follows:

"Please refer to our Order No. 9449 and schedule 75 Tons, 22 Gauge Cold Rolled Sheets Commercial Quality 36" × 96" for December delivery, instead of 75 Tons of 20 gauge 48" × 120" as shown on the subject order.

"May we ask that you try to hold a maximum weight in one lift of 4,500 Lbs. and ship in low side drop end Gondola cars."

On October 21, 1948, defendant answered that letter stating that the suggested changes did not fit into its schedule "too well" with respect to width. In that letter defendant suggested that plaintiff consider something other than 36" "preferably 40" to 48" or narrower in a range of 30" to 35"." On October 28, 1948, plaintiff in response to defendant's letter of October 21, 1948, said in part:

"In reply to your letter of October 21st with respect to the December rolling portion of our order #9449, we wish to advise that while we would prefer this 22 gauge sheet 36" × 96, we can accept this in 48" wide material maintaining the length of 96".

"We ask, therefore, that the material be rolled to this size."

There were various other exchanges of letters relative to making changes in sizes of material and dates of shipment which would seem to be cumulative in character.

In a letter dated August 18, 1949, plaintiff wrote defendant as follows:

"I feel that it would be advantageous to clear our files and therefore ask that you make formal cancellation of all the existing Purchase Orders we have with you. We are so making our records as of this date. * * * We will appreciate your advising that all of our existing orders have been cancelled."

Defendant acknowledged this letter and agreed to cancel all the purchase orders placed with it by plaintiff.

The court expressing the view that the undisputed evidence showed as a matter of law that plaintiff had waived the alleged breach of the contracts forming the basis if its action when in 1948 it contracted for new orders for steel and paid for late shipments on said orders held there was no genuine issue of material fact involved and therefore entered summary judgment of dismissal.

On this appeal plaintiff contends (1) that whether defendant accepted plaintiff's offer for an accord and satisfaction was a material fact as to which there was a genuine issue; (2) that defendant's shipments of steel without acknowledging the new purchase orders constituted a counter-offer rejecting plaintiff's offer for an accord; (3) that whether the cancellation of August, 1949, constituted an implied waiver of plaintiff's claim for breach of the contracts sued upon presented a material fact as to which there was a genuine issue.

A summary judgment should not be entered unless it clearly appears that there is no genuine issue as to a material fact. Rule 56 of the Federal Rules of Civil Procedure, 28 U.S.C.A.; Dulansky v. Iowa-Illinois Gas & Electric Co., 8 Cir., 191 F.2d 881; Traylor v. Black, Sivalls & Bryson, Inc., 8 Cir., 189 F.2d 213; Sartor v. Arkansas Natural Gas Corp., 321 U.S. 620, 64 S.Ct. 724, 88 L.Ed. 967. There may however, be a formal issue presented by the pleadings but shown by affidavit or otherwise not to be genuine. Hurd v. Sheffield Steel Corp., 8 Cir., 181 F.2d 269; Parmelee v. Chicago Eye Shield Co., 8 Cir., 157 F.2d 582, 168 A.L.R. 1130; Broderick Wood Products Co. v. U. S., 10 Cir., 195 F.2d 433; Dewey v. Clark, 86 U.S.App.D.C. 137, 180 F.2d 766. An issue of fact is not genuine unless it has legal probative force as to a controlling issue, 35 C.J.S., Federal Courts, § 144 p. 1205. The motion for summary judgment is not a trial of the issues but for the purpose of determining whether in fact there are any genuine issues as to material facts. If it is made clearly to appear on such a motion that even though there is an issue under the pleadings there is in fact no dispute as to the controlling material facts, then the court should enter summary judgment.

It appears without dispute that plaintiff on September 16, 1948, made a written offer to the defendant in the form of a letter the material parts of which are as follows:

"In consideration of the acceptance of purchase orders 9449 & 9450 for 675 tons of prime steel and 850 coil ends, we agree that all prior orders given to you with the exception of our purchase order No. 5207, shall be cancelled and superseded.

"We will very much appreciate your sending through the acknowledgments on these orders as quickly as possible and that you do everything possible to get the shipment to us as early as you can in September on order No. 5207 as this material is needed very badly."

It stands without dispute that this letter was received but plaintiff denies that defendant made...