Berthold v. St. Louis Electric Const. Co.
| Decision Date | 26 November 1901 |
| Citation | 165 Mo. 280,65 S.W. 784 |
| Parties | BERTHOLD et al. v. ST. LOUIS ELECTRIC CONST. CO. |
| Court | Missouri Supreme Court |
1. Plaintiffs contracted with defendant to sell to it a number of telegraph poles, and, after delivery of a number of the poles, defendant refused to accept any more, which fact was alleged by plaintiffs in an action for breach of the contract, and reiterated in defendant's answer. The case being tried to the court, it gave a declaration of law that if the court, as a jury, should find that plaintiffs delivered and defendant accepted the poles claimed to have been delivered, defendant was liable to the plaintiffs for the contract price of such poles. Held, that a contention that the declaration permitted a recovery on the contract without requiring a performance by plaintiffs was of no force, since it required a finding of fact that plaintiffs had delivered and defendant accepted the poles, and, defendant's refusal to permit plaintiffs to perform having been alleged in the pleadings of both parties, it was not necessary that the court should have annexed to the declaration a clause to the effect that such recovery could not be had unless plaintiffs had been prevented from performing by the act of defendant.
2. The court having found as a fact that defendant had no cause to annul the contract, and the evidence showing a delivery and acceptance of a certain number of poles, plaintiffs were entitled to recover the contract price thereof, and hence, if the declaration of law were defective, it could not work a reversal of a judgment for plaintiff.
3. Where a contract for the sale of telegraph poles required them to be delivered to the purchaser at St. Louis, and the purchaser unequivocally notified the sellers that it would no longer abide by the contract, it was not necessary that the sellers should continue to get out poles and ship them to St. Louis, but they were justified in stopping delivery, and suing for the poles delivered and for the breach as to the undelivered poles.
4. Where a contract for the sale of telegraph poles provided that the sellers should give their personal attention to the work, and not sublet any part thereof, a contract between the sellers and third parties for furnishing poles to the sellers was not a breach of such provision; the same referring to work, and the contract having been merely for the purpose of providing plaintiffs with the means of fulfilling their contract.
5. Though the provision had forbidden such a contract as that made by the seller with the third parties, it appearing that the purchaser knew that the sellers were obtaining the poles in such manner, and that it sent its inspector to where the poles were being gotten out, and left its order for a shipment with the third parties, instead of with the sellers, and received poles from such contractor, the purchaser could not insist that the contract was a breach of the provision.
6. Where a contract for the sale of telegraph poles provided that delivery should commence 60 days after the making of the contract, and that the purchaser might annul the contract whenever the sellers should fail to carry on the work with a satisfactory rate of progress, in an action on the contract by the sellers for breach thereof it was proper for the court to give a declaration of law to the effect that the right of the purchaser was not an arbitrary one, but one to be construed with reference to the period which the contract gave the party to complete it, and that it meant such a rate of progress as a reasonable man, under all the circumstances, would regard as satisfactory.
7. It appearing that under the contract plaintiffs were not required to begin their delivery until August 20th, and that plaintiffs did deliver a number of poles, and that defendant annulled the contract within 24 days thereafter, it could not be said that the trial court's finding that proper performance was made in the delivery of the poles was unsupported by the evidence.
8. Where, in an action for the breach of a contract whereby defendant agreed to purchase certain telegraph poles from defendant, defendant set up as a counterclaim damages for plaintiffs' failure to deliver poles, whereby defendant was obliged to purchase other poles in the open market, it was shown that defendant bought poles of the identical specifications for the same price within the time fixed by the contract, a finding for plaintiffs on the counterclaim was proper.
9. The measure of damages in an action for defendant's failure to receive telegraph poles purchased of plaintiffs is the difference between the contract price and the amount which it would have cost plaintiffs to furnish and deliver the poles under the contract.
Appeal from St. Louis circuit court; H. D. Wood, Judge.
Action by John S. Berthold and another against the St. Louis Electric Construction Company. From a judgment in favor of plaintiffs, defendant appeals. Affirmed.
In June, 1897, the St. Louis Electric Construction Company was desirous of purchasing a quantity of poles suitable for stringing telephone wires, and accordingly advertised for proposals to furnish them, inviting bids according to the specifications prepared by it. The firm of Berthold & Jennings, the plaintiffs, were the successful bidders, and on June 21, 1897, said electric company and Berthold & Jennings entered into a written contract, to which the specifications upon which the bids were made were annexed, and made part of the contract. As the stipulations of the contract are constantly invoked by counsel to maintain their several contentions, it will be well to state the substance thereof. By the contract and specifications, Berthold & Jennings agreed to furnish and deliver to the construction company on or before the 21st day of February, 1898, the materials set forth in the specifications, namely, white cedar poles of the following dimensions and approximate number, to wit:
==============================================================================
| | Minimum | | Length of
| Minimum | Circumference | Number | Pole from
Length of | Circumference | at Top | of | Butt That
Poles. | at Butt. | Before | Poles. | is not to
| | Shaving. | | be Shaved
------------|------------------|--------------------|------------|------------
30 feet. | 36 inches. | 20 inches. | | 5'6"
30 " | 39 " | 23 " | 1,570 | 6'6"
40 " | 44 " | 23 " | 1,570 | 7'6"
45 " | 47 " | 23 " | 950 | 7'6"
50 " | 50 " | 23 " | 575 | 7'6"
55 " | 53 " | 23 " | 145 | 8'6"
60 " | 53 " | 22 " | 225 | 8'6"
65 " | 56 " | 22 " | 35 | 9'6"
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For the poles so to be delivered, the construction company agreed to pay Berthold & Jennings as follows:
For poles 35 ft. long............... $ 3 74 each
" " 40 ft. " ............... 4 78 "
" " 45 ft. " ............... 6 11 "
" " 50 ft. " ............... 12 65 "
" " 55 ft. " ............... 13 53 "
" " 60 ft. " ............... 20 18 "
" " 65 ft. " ............... 25 85 "
Payment for each month's delivery to be made on the 10th of the month following the delivery.
The specifications provide that the and shall The contract contained the following special provisions: Also this provision: "It is hereby mutually agreed and...
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