205 F.2d 438 (8th Cir. 1953), 14751, Durasteel Co. v. Great Lakes Steel Corp.

Docket Nº:14751.
Citation:205 F.2d 438
Case Date:June 29, 1953
Court:United States Courts of Appeals, Court of Appeals for the Eighth Circuit

Page 438

205 F.2d 438 (8th Cir. 1953)




No. 14751.

United States Court of Appeals, Eighth Circuit.

June 29, 1953

         Rehearing Denied July 20, 1953.

Page 439

         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1948, plaintiff agreed in writing that all prior orders, with one exception not here material, should be cancelled and superseded in consideration of defendant's accepting certain new purchase orders; that thereafter shipments were made under said new purchase orders until August 18,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

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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 shipment 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 inch x 96 inch for December delivery, instead of 75 Tons of 20 gauge 48 inch x 120 inch 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 inch 'preferably 40 inch to 48 inch or narrower in a range of 30 inch to 35 inch.' 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 inch x 96, we can accept this in 48 inch wide material maintaining the length of 96 inches'.

         '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...

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