Berthold v. St. Louis Electric Construction Company

• Decision Date: 26 November 1901
• Citation: 65 S.W. 784,165 Mo. 280
• Parties: BERTHOLD et al. v. ST. LOUIS ELECTRIC CONSTRUCTION COMPANY, Appellant
• Court: Missouri Supreme Court

65 S.W. 784

165 Mo. 280

BERTHOLD et al.
v.
ST. LOUIS ELECTRIC CONSTRUCTION COMPANY, Appellant

Supreme Court of Missouri, Second Division

November 26, 1901

Appeal from St. Louis City Circuit Court. -- Hon. H. D. Wood, Judge.

Affirmed.

Boyle, Priest & Lehmann and Geo. W. Easley for appellant.

(1) The first count of the petition is clearly an action upon the contract, and performance must be shown before a recovery thereon can be had. The first declaration allows a recovery, without requiring a finding of performance on the part of the plaintiffs or any legal excuse for their non-performance. This is clearly erroneous. Eyerman v. Mount Sinai Cemetery, 61 Mo. 489; Helm v. Wilson, 4 Mo. 41; Lee v. Ashbrook, 14 Mo. 378; Downey v. Burke, 23 Mo. 228; Lowe v. Sinclair, 27 Mo. 309; Marsh v. Richards, 29 Mo. 99; Creamer v. Bates, 49 Mo. 523; Yeats v. Ballentine, 56 Mo. 530; Cutter v. Powell, 2 Smith's Lea. Cas. 44. The first count being upon the written contract, the recovery must be upon the contract or not at all. This is the rule in cases where the evidence discloses a cause of action on a quantum meruit for work done, or quantum valebat for materials furnished. Cole v. Armour, 154 Mo. 333. The better rule seems to be that had the defendant's acts prevented compliance with the contract by the plaintiffs on their part, the action should have been upon the common counts. Wright v. Haskell, 45 Me. 489; Dubois v. Delaware Canal Co., 4 Wendell, 285; Miller v. Thompson, 22 Ark. 258; Draper v. Randolph, 4 Harr. (Del.) 454; Planche v. Colburn, 4 Bing. 14, 1 Moore & S. 51, 5 Carr. & P. 58. (2) The second declaration of law made at the request of plaintiff is erroneous in the following particulars: (a) Profits can only be recovered when the contract has been terminated by the acts of the defendant "and must be treated and acted upon as such by the party to whom the promise was made; for if he afterwards continue to urge or demand a compliance with the contract it is plain that he does not understand it to be at an end." Benjamin on Sales, 424; Smoot's Case, 15 Wallace 48. (b) The failure of defendant to send inspectors to the places named by plaintiffs by their three offers of poles for inspection, did not prevent the plaintiffs from offering the poles at St. Louis, where the delivery and final inspection was to be made and had. (c) The pretended tender made in the three offers of poles for inspection in distant States did not authorize the plaintiffs to enforce the contract. They did not offer any evidence to show that said pretended tenders were made in good faith, and unless they were, and they had acquired the poles for the purpose of delivering the same to the defendant, it gave the plaintiffs no right to enforce the contract. Lewis v. White, 16 Ohio St. 444. (3) The third declaration given for plaintiff is erroneous; and it was error to refuse the fourth, asked by defendant. The third declaration for defendant broadly asserts that there is no evidence that plaintiffs sublet the contract between plaintiffs and defendant. The execution of the contract between plaintiffs and the Northern Supply Company containing a stipulation that the latter company shall give personal attention to the identical work the plaintiffs had agreed to give their personal attention in the contract with plaintiffs, must be a substitution of the supply company for the plaintiffs; a subcontracting (in which sense the word "sublet" is used in the contract). If this does not amount to a subcontracting, it would be difficult to conceive what other legal effect it can have. Such being the contract of the parties, defendant had the right to have the contract performed by those in whom it had been confided. Implement Company v. Iron Works, 129 Mo. 222. It was an executory contract founded upon trust and confidence in the character and skill of the plaintiffs, and could not lawfully be assigned, sublet or subcontracted to the Northern Supply Company. Lansden v. McCarthy, 45 Mo. 106; Boykin v. Campbell, 9 Mo.App. 495; Redheffer v. Leathe, 15 Mo.App. 12; Sunday Mirror Co. v. Galvin, 55 Mo.App. 421; Leahy v. Dudgate, 27 Mo. 439. (4) The measure of damages on the second count of the petition should have been the difference between the market value of the poles and the contract price. These poles were not a manufactured article. The record shows that they were kept in stock at Chicago, in Michigan and Wisconsin, and had a market price at those places. That market price and the cost of carriage to St. Louis would make the market price at the place of delivery under the contract. Fitzgerald v. Hayward, 50 Mo. 524.

Kehr & Tittmann for respondents.

(1) The cause having been tried by the court without a jury, the facts upon which the court based its judgment are incontrovertible here. Hamilton v. Boggess, 63 Mo. 251; Gaines v. Fender, 83 Mo. 509; State ex rel. v. Staed, 143 Mo. 250; Creamer v. Bates, 49 Mo. 524; Rice, Stix v. McClure, 74 Mo.App. 384; James v. Hicks, 76 Mo.App. 115; Planing M. Co. v. Spilker, 77 Mo.App. 414. (2) As to the poles accepted and received by the defendant under the contract, it is liable to the plaintiffs for the contract price. Black R. L. Co. v. Warner, 93 Mo. 386. (3) The payment for each month's delivery of poles being due on the tenth day of the following month, the contract is severable as to the payments earned, and plaintiffs may sue for them without alleging performance of the other covenants of the contract. Turner v. Mellier, 59 Mo. 535; Adler v. Railroad, 92 Mo. 250; Lee v. Ashbrook, 14 Mo. 385; Smith v. Crews, 2 Mo.App. 269; Sawyer v. Christian, 40 Mo.App. 300; West v. Moser, 49 Mo.App. 209. (4) Defendant having annulled the contract and thereby prevented further performance of it by the plaintiffs, the latter may recover as if they had performed the contract. Chapman v. Railroad, 146 Mo. 493; Black River L. Co. v. Warner, 93 Mo. 374; Bean v. Miller, 69 Mo. 384; Little v. Mercer, 9 Mo. 220; Haplin v. Manny, 57 Mo.App. 61; Gabriel v. Brick Co., 57 Mo.App. 526. (5) What is a satisfactory rate of progress depends on the circumstances of the case. What in reason ought to satisfy a contracting party, the law will hold does satisfy him. Mullally v. Greenwood, 127 Mo. 147. (6) The measure of damages on the second count is the difference between the contract price and the amount it would have cost respondents to furnish and deliver the remainder of the poles. Chapman v. Railroad, 146 Mo. 508; Black River L. Co. v. Warner, 93 Mo. 390; Crescent Mfg. Co. v. Nelson Mfg. Co., 100 Mo. 325; Hammond v. Beeson, 112 Mo. 198; Brandt v. Schuchmann, 60 Mo.App. 72; Park v. Kitchen, 1 Mo.App. 357; Masterson v. Mayor of Brooklyn, 7 Hill 72; Fox v. Harding, 7 Cushing 516; Danforth v. Railroad, 93 Ala. 614; Sedgwick on Damages (8 Ed.), sec. 618; Sutherland on Damages (2 Ed.), sec. 713; Wakeman v. Wheeler, 101 N.Y. 215; Railroad v. Howard, 13 How. 307; Hinckley v. Pitts. S. Co., 121 U.S. 275; Fairfield v. Jeffreys, 68 Ind. 582; Railroad v. Lutes, 112 Ind. 276; Fisher v. Newark Ice Co., 62 F. 546; Silberstein v. Duluth N. T. Co., 68 Minn. 430; Baker & Co. v. R. & I. Mfg. Co., 42 N.Y.S. 76.

OPINION [65 S.W. 785]

[165 Mo. 286] GANTT, J.

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 twenty-first 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 circum-
Length	Minimum cir-	ference at top be-	Number	Length of pole
of poles.	cumference at	fore shaving. --	of poles.	from butt that is
-- feet.	butt. -- Inches.	Inches.	not to be shaved.
30	36	20	5.5
30	39	23	1570	6.6
40	44	23	1570	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

[165 Mo. 287] For the poles so to be delivered, the construction company agreed to pay Berthold & Jennings as follows:

For poles 35 feet long	$ 3.74 each.
For poles 40 feet long	4.78 each.
For poles 45 feet long	6.11 each.
For poles 50 feet long	12.65 each.
For poles 55 feet long	13.53 each.
For poles 60 feet long	20.18 each.
For poles 65 feet long	25.85 each.

Payment for each month's delivery was to be made on the tenth of the month following the delivery.

The specifications provide that the "poles shall be of the best quality straight-grained white cedar, free from large or loose knots, checks and twists. They shall be straight, well proportioned from top to butt, the bark shall be entirely peeled, and the poles shaved in a neat and workmanlike manner from the top to a distance from the butt specified in the...