Bolt v. Caldwell

• Decision Date: 29 February 1912
• Citation: 144 S.W. 472,240 Mo. 358
• Parties: MORAN BOLT AND NUT MANUFACTURING COMPANY, Plaintiff, Appellant, v. GEORGE W. CALDWELL and LESTER DRAKE, Defendants, Appellants
• Court: Missouri Supreme Court

144 S.W. 472

240 Mo. 358

MORAN BOLT AND NUT MANUFACTURING COMPANY, Plaintiff, Appellant, v. GEORGE W. CALDWELL and LESTER DRAKE, Defendants, Appellants

Supreme Court of Missouri, First Division

February 29, 1912

Appeal from St. Louis City Circuit Court. -- Hon. George H. Shields Judge.

Reversed and remanded (with directions).

Kinealy & Kinealy for plaintiff appellant.

(1) The words in the plaintiff's proposal accepted by defendants "You to furnish lists of each and every kind of material required, 'at least thirty days prior to the time you require it,'" are not an agreement or proposal of plaintiff to furnish any material specified in any such list within thirty days after such list has been furnished to plaintiff. Leslie v. Mining Co., 110 Mo. 31; Duhamel v. Stone Co., 59 Wash. 171; McReynolds's Appeal, 66 Pa. St. 102; United States v. Dimmick, 112 F. 350; People v. Railroad, 76 Cal. 29; Brewster v. Brewster, 52 N.H. 52; Bowerman v Mining Co., 98 Mo.App. 317. (2) Where no time is specified for the delivery of material the law is well settled that it must be delivered in what would be a reasonable time under the circumstances. 24 Am. & Eng. Ency. Law, 1073; Berthold v. Construction Co., 165 Mo. 280; Joseph v. Andrews, 78 Mo.App. 551; State v. King, 44 Mo. 238. (3) The court erred in allowing to defendants and adjudging in their favor on their counterclaims the sums of $ 94.50, of $ 800, of $ 704 and of $ 1874 or any one or part of any one of them. The foundation of the court's action is an erroneous construction of the contract, but even under that construction there was no competent evidence to support any of them in whole or in part.

Wilfley, Wilfley, McIntyre & Nardin for defendants appellants.

(1) Words in a contract will be construed according to their usual and customary meaning in the connection in which they are used, the aim of the court being to construe the contract as an entirety so as to give effect to the mutual intention of the parties. Lovelace v. Protective Assn., 126 Mo. 104; Eaton v. Coal Co., 125 Mo.App. 194; Donovan v. Boeck, 217 Mo. 87. (2) The word "required," as used in the contract between plaintiff and defendants, must be construed to mean "needed." Bowerman v. Mining Co., 98 Mo.App. 316; McKeener v. Iron Co., 138 Pa. St. 184; Hull v. Hollaway, 58 Conn. 210; Park v. Candler, 114 Ga. 466; Miller v. Leo, 35 A.D. 589. (3) The filing of the lists with plaintiff was notice to plaintiff of materials needed, and at the end of thirty days from the end of filing the lists, the time for delivery under the contract was fixed.

BOND, C. Brown, C., concurs.

OPINION

BOND, C.

Plaintiff, a materialman, on February 17, 1904, sued the defendants, who were general contractors for the construction of the agricultural building for the World's Fair Company, for $ 6426.30 and interest thereon, alleged to be a balance due for wrought and cast iron materials furnished according to specifications of defendants.

The amended answer of defendants averred that plaintiff entered into a contract with them on March 3, 1903, to-wit:

"St. Louis, Mo., Mch. 3, 1903.

"Messrs. Caldwell & Drake,

Builders,

St. Louis, Mo.

"Gentlemen: -- We propose to furnish you with all the wrought iron and steel, cast iron, and washers, all according to plans and specifications for the construction of the agricultural building at the World's Fair, all finished complete and ready for erection F. O. B. World's Fair Grounds at site of agricultural building at the following prices; plain rods, up set rods, turn buckles, all bolts, drift pins and other wrought iron of whatsoever kind at $ 2.55 per 100 lbs. All cast washers at $ 1.55 per 100 lbs. All other cast iron where patterns are necessary at $ 2.20 per 100 lbs. You to furnish us lists of each and every kind of material required at least thirty days prior to the time you require it.

"Upon our failure to deliver goods on time as stated we agree to pay whatever damages you sustain on account of such delay. Terms sixty days net. We further agree to furnish a bond for the faithful performance of our part of this agreement in the penal sum of seven thousand ($ 7,000) dollars with some responsible bonding company.

"Respectfully submitted,

"Moran Bolt & Nut Mfg. Co.,

"Jno. Gorman, Pres.

"We accept the above proposition.

[signed] "Caldwell & Drake,

"by Geo. Caldwell."

That on March 31st defendants "delivered to plaintiff lists for two-thirds of the material required" for the building which the defendants had contracted to erect, that plaintiff did not deliver said material within thirty days after reception of said lists nor the material specified on a list given to plaintiff June 24, 1903, within thirty days thereafter; that said delays damaged defendants in various ways, aggregating $ 12,000, for which they counterclaim and prayed judgment.

Issue was joined by reply. There was no dispute as to the price or the delivery of materials sued for by plaintiff.

The case was submitted to a referee who recommended judgment for plaintiff's account and interest, and judgment against the several counterclaims filed by defendants. His report is in part to-wit:

"This was a large and complex structure, containing iron of various dimensions and shapes. The lists of March 30th and 31st were for, approximately, five hundred thousand pounds of iron, consisting of over one hundred different sizes and shapes. Very little of this iron was needed until June. Under these circumstances, I do not consider that the mere sending of these lists of March 30th and 31st to plaintiff was a notice to it that defendant would require all the iron mentioned in those lists to be delivered by May 1st. Especially so, considering the facts that defendants conceded the inaccuracies in the lists; that they requested alterations be made in the dimension of certain articles specified in the lists; and that on June 24th a new list was provided as a substitute for the previous lists, and that when the list of March 31st was sent, it was accompanied by the request that the articles specified therein be gotten out before those specified in the list of March 30th; that about April 25th, plaintiff offered to deliver a carload of iron, but defendants refused to receive it, saying they could not then use it; that about May 7th defendants complained to plaintiff that it was sending more washers than had been specified in one of the special orders. Since the only instance in which plaintiff was notified of the time when the material would be required was when the small lists or orders were sent, plaintiff was not in default unless it failed to deliver the material ordered in those small lists or orders within a reasonable time (not exceeding thirty days). No such failure on the part of the plaintiff was shown.

"Unless the contract of March 3, 1903, is to be construed according to defendants' contention by holding that it required plaintiff to deliver all the materials specified in the lists of March 30th and 31st within thirty days from the furnishing of those lists, then there is no evidence to show any default upon the part of plaintiff. But as I do not construe the contract according to defendants' contention, I find that plaintiff was not in default by reason of any failure to deliver the material according to the terms of the contract.

"Even if the contract of March 3, 1903, were to be construed according to defendants' contention, I still find that defendants are not entitled to recover on their counterclaim, for the reason that their evidence is not sufficient or definite enough upon which to base a judgment, and they have not shown with sufficient clearness that the losses which they claimed to have suffered were due to a default upon the part of plaintiff. Their evidence upon the subject consists only of general impressions that plaintiff was forty to fifty days behind in delivery of iron, but they were unable to give details sufficient to convince me that these statements are more than a mere guess or conjecture.

"The forty or fifty days delay to which they have testified is admitted in their testimony to mean that the iron was not delivered until forty or fifty days after May 1st; this would bring it to June 10th or 20th. I find from the evidence that prior to about June 15th, there was no shortage of iron sufficient to interfere with the work. Defendants have shown that they were obliged to go over the work and replace certain iron work, but they have not proven the time that this occurred or when the order was given for the iron which was lacking, and have not shown with any degree of definiteness the amount of the damages they have sustained, nor have they proved with sufficient definiteness the other elements of damage alleged, nor shown them to have been a direct result of any default upon the part of plaintiff."

The court, on defendants' exceptions, sustained the finding for the plaintiff, overruled the referee as to the disallowance of four items of the counterclaim of defendants, aggregating $ 3472.90, and held these should be allowed and deducted from finding for plaintiff, and judgment rendered for the balance in its favor, $ 2953.40.

Both parties appealed. The errors assigned and the appurtenant evidence, as far as necessary, will be discussed in the opinion.

OPINION.

I. The first error assigned by the two appellants is based upon the following language of the accepted proposal which constituted the contract between the parties, to-wit: "You to furnish us lists of each and every kind of material required at least thirty days prior to the time you require it." Plaintiff insists this language required defendants when delivering a list of the various "kind of material required," then...