B. F. Sturtevant Co. v. Ford Mfg. Co.

• Decision Date: 11 October 1926
• Docket Number: No. 25463.,25463.
• Parties: S. F. STURTEVANT CO. v. FORD MFG. CO.
• Court: Missouri Supreme Court

288 S.W. 59

S. F. STURTEVANT CO. v. FORD MFG. CO.

No. 25463.

Supreme Court of Missouri, Division No. 1.

October 11, 1926.

Motion for Rehearing Denied November 15, 1926.

Case Certified from St. Louis Court of Appeals.

Action by the B. F. Sturtevant Company against the Ford Manufacturing Company. Judgment for plaintiff was affirmed by the St. Louis Court of Appeals (253 S. W. 76), and cause certified to Supreme Court because of dissent. Reversed and remanded for retrial.

Abbott, Fauntleroy, Cullen & Edwards, of St. Louis, for appellant.

Rassieur & Goodwin, and Jourdan, Rassieur & Pierce, all of St. Louis, for respondent.

SEDDON, C.

This cause comes to this court upon certification from the St. Louis Court of Appeals because of the dissenting opinion of one of the judges of that court. Plaintiff, respondent here, had verdict and judgment in its favor in the circuit court, which judgment was affirmed by majority opinion of the St. Louis Court of Appeals. The majority opinion of that court is reported in 253 S. W. 76, while the dissenting opinion of Judge Allen is reported in 254 S. W. 419. Plaintiff's petition was originally cast in two counts. The first count was founded upon special contract and was dismissed by plaintiff before submission of the cause to the jury. The second count of the petition, upon which the cause was submitted, is as follows:

"For cause of action by its second count plaintiff states: That it and defendant are corporations. That on or about the 12th day of September, 1918, at the special instance and request of the defendant, it manufactured and delivered free on board at Reedville, Mass, `one (1) No. 8 positive type pressure blower and one (1) 16" high-pressure type blast gate or air valve, furnished with a 16-inch face pulley,' and paid out and expended, at the request of the defendant, the sum of $46.66 as freight and transfer charges and taxes thereon, in shipping said equipment to the defendant at Vandalia, Ill., all of which charges were reasonable and necessary to accomplish said shipment. That the reasonable value of the work and labor and services rendered and performed in manufacturing and delivering said equipment free on board at Readville, Mass., was the sum of $2,184, and that this charge, plus $46.66, as above set forth, makes a sum total of $2,230.66 due the plaintiff, which the defendant promised to pay the plaintiff. That on or about October 28, 1918, after said sum became due as aforesaid, the defendant, upon demand being made therefor, refused to pay plaintiff. Wherefore, upon its second count, the plaintiff prays judgment against the defendant for the sum of $2,230.66, with interest from October 28, 1918, together with its costs herein."

The answer is a general denial.

Plaintiff is a manufacturer of fans, blowers, and similar appliances, having its principal office and factory at Hyde Park, a suburb of Boston, Mass. It has branch or district offices in several of the large cities of the United States. One of plaintiff's district offices is located in St. Louis, Mo., and, during the year 1918, was in charge of Victor E. Hugoniot, as manager of said office. Defendant is a manufacturer of roofing material, with its principal office in St. Louis and a factory at Vandalia, Ill.

On February 28, 1918, defendant wrote to plaintiff's St. Louis office:

"We are in the market for two Sturtevant blowers to be used for blowing asphalt. We would like very much to have you send your representative to Vandalia to go into this matter with us."

Pursuant to that request, plaintiff's representative, Mr. Hugoniot, went to Vandalia, Ill., and conferred with defendant's officers concerning the inquiry.

On March 7, 1918, plaintiff's representative, Hugoniot, wrote defendant:

"I am unable to advise you definitely in regard to shipment at this time, but I wired our factory on my return from Vandalia last night and requested that they wire me back. However, I feel very certain that we can ship you a No. 8 blower in about 8 or 10 weeks after receipt of order at the factory. I am sure that I will have this information, however, on Monday."

On March 18, 1918, defendant sent to plaintiff's St. Louis office a written order (upon one of defendant's order forms), as follows:

                                "Vandalia, Ill., March 18, 1918
                

"B. F. Sturtevant Company, St, Louis, Mo.— Ship to Ford Mfg. Co. at Vandalia, Ill.

"How ship: Local freight. When: At once.

                                 Quantity. Description
                  1                             No. 8 blower
                  1                             Air valve
                

"Per your quotation to Mr. L. M. Ford. This order confirms order given you by Mr. Ford over the `phone.

"Please render invoice promptly after making shipment. Notify us at once if there is any portion of the above order you cannot fill promptly."

The foregoing written order was received at plaintiff's St. Louis office on March 19, 1918, and was forwarded to and received at plaintiff's factory at Hyde Park, Mass., on March 23, 1918. Plaintiff's St. Louis representative, by letter dated March 19, 1918, acknowledged receipt of defendant's written order, stating therein:

"Please note that we will invoice you for this material in the amount of $2,090, which covers both blower and valve f. o. b. car our factory, Readville, Mass. Terms of payment are 60 days net cash, and we will allow a discount of $40.94 for payment 10 days after receipt of material. Please note that owing to present business conditions no cancellation of orders will be accepted."

About one month after giving plaintiff the written order for the blower, defendant requested a change in the order by adding a 16-inch face pulley to the blower ordered. Relative to the change requested by defendant, plaintiff's St. Louis representative wrote to defendant on April 17, as follows:

"As the writer has advised you by `phone, it will be necessary for us to make a charge which our factory estimates, will be in the neighborhood of $100, which is necessary, due to the fact that we will have to change our patterns on the blower base, making also a new pattern to allow for a greater shaft extension and a wider faced pulley. We will advise you as soon as we have accurate advice as to the exact charge that will be made for this work. We understand this has your approval, and we wish you would kindly acknowledge this letter signifying to that effect. In the meantime, however, we have wired our factory to proceed with this work so that the delay occasioned by this change may not be any longer than is necessary."

Defendant replied on April 18, as follows:

"Answering yours of the 17th, you can consider this letter as your authority for changing the blower which we have ordered from you so as to furnish a 16-inch face pulley, extra charge not to exceed $100. It is understood that if the cost is any less than that, we will get the benefit of same. Please advise us as soon as possible just when this blower will be shipped. We are now ready for it, and anything you can do to hurry it along will certainly be appreciated."

On May 7, plaintiff sent to its St. Louis representative, Mr. Hugoniot, an interoffice communication, reading as follows:

"In reply to your letter of the 19th ult., we beg to inform you that we will keep our shipping date given; namely, 5/20/18. Works Priority Committee."

Mr. Hugoniot testified that he "presumed" that he communicated that fact to defendant, and defendant's president, when asked if Hugoniot had shown to him the communication, answered:

"Yes; I am pretty sure that he did show that to me."

Shipment of the blower was not made on May 20, 1918. Defendant's president testified, further, that Hugoniot subsequently informed him that shipment of the blower would be made on July 1, and, when the blower was not shipped on that date, Hugoniot then said that shipment would be made on July 25. On July 23, defendant wrote to plaintiff at its principal office:

"Referring to the blower which we have ordered from your company for our Vandalia plant. We were advised by your St. Louis office that shipment of this machine would be made on July 25th, which is Thursday of this week. We called the St. Louis office on the telephone today, but were unable to get in touch with your representative, and are therefore addressing you in regard to the matter to let you know that we shall expect shipment of this machine on July 25th, as promised, and we sincerely trust that you will not disappoint us."

On July 25, defendant telegraphed plaintiff:

"Was our blower shipped today. Wire answer."

On July 27, defendant again telegraphed plaintiff:

"Reply to our wire twenty-sixth. as blower been shipped."

On July 27, plaintiff answered by telegram:

"Due to flaw in casting, cannot ship blower till August 20th."

On July 27, plaintiff wrote to defendant:

"We are in reciept of your letter of July 23d, and will say that we had this blower assembled, and practically ready to test, when we discovered a flaw in one of the castings, and this had to be rejected. This means that a new one has got to be made up and machined, and we regret that, under the present indications, this will delay shipment until about August 20th. We regret this as much as you do, as we have counted on getting this out of our way so as to make room for other work, but, with the flaw in the casting which we discovered after the blower was nearly assembled, we did not dare to make shipment."

On July 29, defendant wrote plaintiff:

"Your wire 28th, stating that you cannot ship blower until August 20th, on account of a flaw in casting. We cannot understand why it should require more than three weeks for you to produce a new casting for this blower. Shipment of this blower has been put off on several occasions for reasons of one kind or another, and we feel that it is about time you are getting action on this matter. You have made us numerous promises regarding the shipment of this blower, but so far...