Big Chief Sales Co. v. Lowe, 39626
| Decision Date | 07 May 1955 |
| Docket Number | No. 39626,39626 |
| Citation | 178 Kan. 33,283 P.2d 480 |
| Parties | The BIG CHIEF SALES COMPANY, Inc., and The Big Chief Manufacturing Company, Inc., Appellants, v. F. Wesley LOWE, Appellee. |
| Court | Kansas Supreme Court |
Syllabus by the Court
The record examined in an action to recover for the erection of a building, and held, the trial court did not err in respect to the contentions of appellants considered in the opinion, and that its judgment must be affirmed.
Percy H. Collins, Jr., Belleville, argued the cause, and N. J. Ward, Belleville, and Duane Roberts, Hutchinson, were with him on brief for appellants.
Frank C. Baldwin, Concordia, argued the cause, and Fred Emery, Belleville, and Dean L. Gibson, Concordia, were with him on brief for appellee.
This was an action to recover on a contract for the erection of a building. The trial resulted in a judgment for plaintiffs for a sum less than that alleged to be due and plaintiffs have appealed.
Under date of December 20, 1951, the Big Chief Sales Company, hereafter called Sales Company, commenced an action against the defendant Lowe. We shall not detail intervening motions and pleadings, but finally a second amended petition was filed naming the Sales Company and Big Chief Manufacturing Company, hereafter called Manufacturing Company, as parties plaintiff. After alleging status of plaintiffs as corporations it was further alleged that Big Chief Erection Company, hereafter called Erection Company, was a partnership of named persons, and erected the building later mentioned; that on April 13, 1951, defendant Lowe entered in an agreement with the Manufacturing Company whereby that company agreed to furnish materials for the construction of a building for the sum of $4,834.93, in accordance with a written sales agreement signed by him and that it was also agreed between the Manufacturing Company and Lowe that the building would be erected by the Erection Company for the sum of $1,200; that the sum of $950 was to be paid by Lowe at the time the order was signed, the balance to be paid on terms as provided by the A.A.A. meaning the Agricultural Adjustment Administration and which was then being administered by the Productive Marketing Association, and a copy of that sales agreement was attached as part of the petition. It was also alleged the material was shipped to Lowe's premises and accepted by him; that an additional door was to cost $40.80; that Lowe at the time the order was given paid the $950 and made arrangements with the Productive Marketing Association for the balance of $5,125.73, but Lowe has failed to pay either plaintiff and refused to complete arrangements with the governmental agency to secure the funds. It was also alleged that the Manufacturing Company had assigned the Lowe sales agreement to the Sales Company, and the building had been constructed by the Erection Company and that by consent of the Manufacturing Company and the Erection Company the Sales Company maintained the action to recover the price of the material furnished by the Manufacturing Company and for the erection of the building by the Erection Company. Further allegations are that Lowe accepted the building and used it, and if the building was not strictly in accord with the terms of the sales agreement, Lowe waived the same by his acts and conduct. Plaintiffs prayed judgment for $5,125.73. The sales agreement follows:
'I agree to pay freight and handling charges f.o.b. mill to final designated delivery point. I agree to pay the balance on terms specified and accept delivery within forty-eight hours after I have been notified it is ready.
'In case I fail to take delivery when notified, my deposit may be retained as liquidating damages for expenses and efforts in the matter, and dealer may dispose of material without any liability to me whatsoever. It is agreed that cash accepted as deposit on this order may be held in trust by dealer until delivery is effected. The prices quoted are for immediate delivery, but if the price should be changed by the manufacturer before delivery and payment, then this order shall be constructed (sic) as if the changed price was originally inserted herein.
'It is understood that no conditions or representations altering or detracting from, the terms hereof, shall be valid unless printed or written hereon or evidence in writing from our Home Office.
"Purchaser:
X Wesley Lowe
---------------------------
By: .......................
"Salesman:
.......................
Accepted:
By: M. C. Stucky"
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Defendant Lowe's answer, so far as necessary here, alleged he entered into an agreement with the Manufacturing Company by the terms of which that company agreed to furnish the materials for and erect on a foundation prepared by him an insulated, galvanized iron, steel frame, building 50 feet in width by 60 feet in length suitable for grain storage and such that he would be able to borrow the balance of the agreed price from the governmental agency then making loans to farmers for that purpose; that the agreement was partly oral and partly evidenced by the skeleton memorandum a copy of which was attached to the petition; that at the time of the contract he paid the Manufacturing Company $950 and agreed to pay the further sum of $5,084.93 upon the completion of the building from the proceeds of a loan from the governmental agency; that he performed his part of the contract and erected the foundation but the Manufacturing Company did not substantially or in good faith perform its agreement in the materials furnished and the construction of the building erected; used materials not suitable for the purpose; the work was not performed in good and workmanlike manner nor so that a loan could be procured as contemplated by the agreement; that the erection of the building was carelessly and unskillfully done and the building was not weatherproof as was necessary to provide proper grain storage in that water and other moisture leaked through the structure in excessive quantities, the building was not plumb, the doors were bent, the framework supporting the doors was improperly constructed, the windows were of a type not properly usable in the building and were improperly installed, and the building was wholly inadequate, unfit and not suited for the storage of grain or any other purpose; that defendant repeatedly requested plaintiffs to comply with their agreement and make the building suitable and adequate for storage of grain, all of which plaintiffs failed to do and by reason thereof plaintiffs have failed to perform. Defendant further alleged, in the alternative, that in order to make the building serve its intended purpose, necessary work and materials would cost $3,176.75, or that the difference in value of the building as actually erected and its value if erected in accordance with the agreement, was $3,176.75. Defendant prayed that plaintiffs and the Erection Company take nothing or in the alternative, that if recovery be allowed, it be limited to the difference between the contract price and the amount defendant will be compelled to expend to make it conform to the agreement.
Plaintiffs' reply contained a general denial and many allegations argumentative in character. It was alleged the agreement was complete in itself except as to time of payment and type of building; that there was no agreement the building would be for grain storage, but if there was any such arrangement or talk as to storage prior to the agreement it was not made a part thereof and was not binding on plaintiffs; that defendant Lowe made application to the Production and Marketing Administration for a loan of $5,129.69, which was approved and such approval made due and payable the balance due plaintiffs for the materials and erection of the building; that any ambiguities in the agreement as to payment, materials and construction had been made definite and certain by the acts of the parties, in that application for the loan was made and approved, the materials were accepted, the building was erected and the defendant Lowe inspected and approved...
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