B. F. Sturtevant Co. v. Ford Mfg

• Citation: 253 S.W. 76
• Decision Date: 03 April 1923
• Docket Number: No. 17443.,17443.
• Parties: B. F. STURTEVANT CO. v. FORD MFG.
• Court: Court of Appeal of Missouri (US)

253 S.W. 76

B. F. STURTEVANT CO. v. FORD MFG.

No. 17443.

St. Louis Court of Appeals. Missouri.

April 3, 1923.

Rehearing Denied July 19, 1923.

Appeal from St. Louis Circuit Court; J. Hugo Grimm, Judge.

"Not to be officially published."

Action by the B. F. Sturtevant Company against the Ford Manufacturing Company.

Judgment for plaintiff, and defendant appeals. Affirmed.

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

Jourdan, Rassieur & Pierce, of St. Louis, for respondent.

NIPPER, C.

This action originated in the circuit court of the city of St. Louis, on the 18th of September, 1919.

Plaintiff's petition was in two counts. The first count was dismissed at the close of all the evidence. The second count is as follows:

"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 Readville, Massachusetts, `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 forty-six and 66/100 dollars ($46.66) as freight and transfer charges, and taxes thereon, in shipping said equipment to the defendant at Vandalia, Illinois, 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, Massachusetts, was the sum of twenty-one hundred and eighty-four dollars ($2,184.00), and that this charge, plus forty-six and 66/100 dollars ($46.66), as above set forth, makes a sum total of twenty-two hundred thirty and 66/100 dollars ($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 twenty-two hundred thirty and 66/100 dollars ($2,230.66), with interest from October 28, 1918, together with its costs herein."

The answer was a general denial.

It appears that on or about March 18, 1918, defendant purchased from plaintiff the blower described in the petition. Plaintiff's office and place of business is in or near Boston, Mass. Defendant maintains offices in St. Louis, and has a manufacturing establishment at Vandalia, Ill. The blower was purchased by defendant for the use of its Vandalia plant, and was to be shipped to Vandalia. Plaintiff also maintains an office in the city of St. Louis, which office was in charge of one of its representatives, Victor E. Hugoniot. The terms were to be 2 per cent. discount for payment within 10 days after receipt of the goods. This order was placed with the plaintiff through the above-named representative, Mr. Hugoniot. About one month later defendant instructed the plaintiff to change the order so as to: tarnish a 16-inch face pulley at a cost not to exceed $100. Defendant was notified that the order was accepted, and, owing to business conditions, no cancellations or orders would be accepted. The goods were to be shipped on or about May 20, 1918, and defendant was so informed, but the blower was not shipped. The reason therefor, as shown by plaintiff's evidence, was that it was engaged in manufacturing war materials for the government under contracts, and that about 80 to 90 per cent. of its time and manufacturing plant was used in making and manufacturing war materials, and in filling orders for the Emergency Fleet Corporation. Shipment was postponed from time to time, defendant urging plaintiff to ship the blower as soon as possible, and to hurry up the order, and plaintiff in return fixing one shipment date after another until plaintiff agreed and fixed July 25, 1918, as a definite date when the blower would be shipped.

On July 23, 1918, the defendant wrote plaintiff a letter and advised it that defendant had been advised by plaintiff's St. Louis office that this machine would be shipped July 25, 1918, as promised, and urged plaintiff to be sure to ship on that date. On said July 25th, defendant sent plaintiff a telegram asking if the blower had been shipped, and on July 27th following sent another telegram asking again if it had been shipped. On the last-named date, plaintiff sent defendant a telegram, advising it that, due to a flaw in casting, plaintiff could not ship the blower until. August 20th following. On July 29th following, defendant wrote plaintiff a letter acknowledging receipt of this telegram, and complaining because the shipment of this blower had been put off from time to time, and saying it could not understand why more than three weeks should be required to produce a new casting for the blower. Defendant urged plaintiff to make a special effort to give it a little more service on this order. Plaintiff answered on August 1st by saying that the particular casting referred to was an impeller, and was a casting which it took considerable time to make, but that it would be hurried along as soon as possible, and no other commercial work would be put in ahead of it. On August 9th, defendant again wrote plaintiff, advising it that defendant was holding up some important work at their Vandalia plant awaiting the installation of this machinery, and urging them to ship at the earliest possible moment. This was followed by other letters about August 19th, the date the shipment was to be made. The shipment was not made on August 19, 1918, and defendant was advised that the shipment would be made about September 12th following.

From this point on the evidence is in conflict as to just what took place between plaintiff and defendant. Defendant admits that it made no reply to these letters from the main office in Boston with respect to the September shipping date, but that it told plaintiff's representative, Mr. Hugoniot, immediately after it ascertained that the shipment had not been made on August 19th, that it considered the order canceled, and did not want the blower. Plaintiff's representative, however, denies this, and all of plaintiff's evidence tends to show that defendant did not cancel the order, but went out in the market and purchased a blower or blowers elsewhere. The blower was loaded on a car about September 12, 1918, and arrived in Chicago about October 9th following, and on October 18th arrived in Vandalia, Ill. The following stipulation by the parties was agreed to:

"It is hereby stipulated and agreed as follows:

"That, on October 9, 1918, the blower and equipment mentioned in plaintiff's petition arrived at Chicago, Illinois, in Pittsburgh & Lake Erie car No. 44351; that on said day it was by a Chicago transfer company delivered to the United States Railway Administration in charge of and operating the Illinois Central Railway Company, duly marked and consigned to defendant Ford Manufacturing Company at Vandalia, Illinois; that thereafter the same was delivered at Vandalia, Illinois, at the Pennsylvania Railroad station on October 18, 1918.

"That the bill of lading in favor of the Ford Manufacturing Company covering said shipment was duly transmitted to the defendant Ford Manufacturing Company.

"That the freight charges, amounting to $38.-50; transfer charges at Chicago, amounting to $7.00, and war tax thereon, amounting to $1.16, making a total of $46.66, were reasonable and necessary charges paid out and expended by the plaintiff in procuring and causing said shipment to be delivered to the defendant Ford Manufacturing Company after said equipment had been delivered f. o. b. Readville, Massachusetts."

Defendant at first refused to receive the shipment. Then it appears from defendants evidence that, on October 21, 1918, plaintiff sent defendant a telegram that it had received advice through the Pennsylvania Railroad that defendant had refused this shipment Plaintiff also advised defendant that demurrage charges were accruing daily, and that the order was taken subject to no cancellation, and "advise you accept shipment immediately avoid additional expense." The president of defendant company testified that the machine was in one of its warehouses, where they had taken it intact after it had been held by the railroad company for a number of days on the platform. On October 28, 1918, defendant wrote plaintiff that, as soon as it learned that the blower was not shipped on August 20th, it had notified the local manager of plaintiffs St. Louis office that it did not want the blower, and, in order to prevent the accumulation of storage charges, the blower was taken in; but this action "does not mean that we will accept the blower, because we will not; we are simply holding it subject to your order," and requested plaintiff to advise it what disposition it wanted made of the blower. Plaintiff refused to deal further with the question, and later brought this suit.

Instruction No. 1 given for the plaintiff told the jury that, if they found that on` or about the 12th day of September, 1918, at the special instance and request of defendant, plaintiff manufactured and delivered, f. o. b. Readville, Mass., the blower in question, and that the same was manufactured and shipped within a reasonable time after defendant requested the same to he done, they should...