Bride v. City of Slater
| Decision Date | 14 December 1953 |
| Docket Number | No. 43133,No. 1,43133,1 |
| Citation | 263 S.W.2d 22 |
| Parties | BRIDE v. CITY OF SLATER |
| Court | Missouri Supreme Court |
William W. Sterrett, Slater, Harold L. Harvey, St. Louis, for City of slater.
Johnson and Butterfield, Marshall, Harry A. Hall, Kansas City, for respondent-appellant.
VAN OSDOL, Commissioner.
Plaintiff, E. L. Bride, an individual, doing business as E. L. Bride Company, instituted this action against the City of Slater for $6,468.96, allegedly the unpaid purchase price of fuel oil provided by plaintiff Bride to defendant City under a written contract. The defendant City filed its counterclaim for $18,158.07, being the total amount of payments made by defendant City to plaintiff Bride for other fuel oil supplied defendant City by plaintiff pursuant to the contract.
The trial court sustained defendant City's motion to dismiss plaintiff's petition for failure to state a claim upon which relief could be granted. The sustention of the motion was on the stated grounds that the petition showed on its face that the alleged contract was void under the provisions of Section 432.070 RSMo 1949, V.A.M.S., in that the contract failed to state in writing a definite price or consideration for the sales therein provided; and that the petition failed to allege that the contract was approved by the common council of defendant City in compliance with Section 91.530 RSMo 1949, V.A.M.S. Plaintiff has appealed from the order and judgment of dismissal.
The trial court also sustained plaintiff's motion to dismiss defendant City's counterclaim for failure to state a claim upon which relief could be granted. This was on the stated ground that the counterclaim showed on its face that the defendant entered into a written agreement and contract with the plaintiff with the full knowledge of all the facts and circumstances, accepted deliveries which it used for its municipal purposes and for which it paid the contract price; and that, by reason of the City's action in so doing, it is estopped to repudiate the contract and cannot lawfully claim the contract was invalid, or recover the moneys paid. Defendant City has appealed from the order and judgment of dismissal of its counterclaim.
Plaintiff-appellant-respondent Bride contends the trial court erred in sustaining defendant's motion to dismiss plaintiff's petition, and did not err in sustaining plaintiff's motion to dismiss defendant's counterclaim. And defendant-respondent-appellant City contends the converse of plaintiff's contentions relating to the trial court's action on both motions.
Plaintiff in his petition alleged that he was engaged in the fuel-oil business and that defendant, City of Slater, a municipal corporation,
'3. * * * advertised for bids for the sale of fuel oil to the city for its municipal light plant and other operations for the season beginning September 1, 1947, and that pursuant to said request, plaintiff submitted the contract hereinafter referred to as Exhibit A, offering to furnish fuel oil over said period at a price to be fixed at the seller's market price on the date of shipment.
'4. That the defendant duly accepted said contract, a true and correct copy of which is herewith referred to and attached as Exhibit A.
'5. Plaintiff states that thereafter and on February 28, 1948, at the special instance and request of the defendant, plaintiff sold two tank cars of fuel oil, totalling 20,448 gallons of the value and at the price of $.16 per gallon, totalling $3,271.68, which said sum was due and payable on March 9, 1948.
'6. That thereafter, and on March 1, 1948, at the special instance and request of the defendant, plaintiff sold two additional tank cars of fuel oil, totalling 19,983 gallons of the value and at the price of $.16 a gallon, totalling $3,197.28, which said amount was due and payable on March 11, 1948.
'7. That said oil was shipped to defendant on February 28, 1948, and March, 2, 1948, respectively.
'8. Plaintiff further states that the prices charged for said fuel oil are and were at the time when said fuel oil was sold and delivered reasonable and proper and were seller's market prices on dates of shipments, and defendant promised and agreed to pay the same, but though often requested, defendant had failed and refused to pay for said fuel oil, and the whole sum thereof remains due and unpaid.
'Wherefore, plaintiff prays judgment against the defendant in the sum of $6,468.96, together with interest thereon * * *.'
The contract referred to in the petition and attached thereto was in part as follows,
'Between E. L. Bride Company, seller, and City of Slater, Slater, Missouri, buyer. Product: Clean, low sulphur, diesel engine fuel below zero cold test when desired. 'Quantity: 3 or 4 tank cars per month. Shipment: Over a period of six months starting September 1st, 1947. Price: Shall be seller's market price on date of shipment. F.O.B.: Refinery. Terms: 1% 10 days from date of shipment. * * *
'This contract dated at Kansas City, Missouri, this 28th day of August, 1947, and when accepted by the buyer contains all the terms of agreement between seller and buyer.
'Accepted: City of Slater, Missouri
(Buyer)
'By /S/ R R Howard, Supt
'(Seal) Municipal Utilities Title.'
(The trial court also sustained defendant's motion to strike Paragraph 6 of the petition on the stated ground that the sale therein alleged was subsequent to the expiration date of the purported contract with defendant City.)
In stating its counterclaim, defendant City alleged the following,
'2. In August, 1947 plaintiff entered into a purported agreement with defendant, signed by the plaintiff and one R. R. Howard, Superintendent of Municipal Utilities for defendant. Said purported agreement contemplated the purchase, by defendant from plaintiff, of fuel oil over a period of six months, beginning September 1, 1947 at 'sellers market price on date of shipment.' Said purported agreement was invalid and wholly void because it was not approved by defendant's common council in compliance with 1939 RSMo, Section 7804 (Section 91.530, supra); because it did not specify any definite price for oil, in violation of 1939 RSMo, Sec. 3349 (Section 432.070, supra); and because it was so indefinite and vague as to be unenforcible.
(Here were particularly stated the dates and amounts of payments between September 12, 1947 and March 10, 1948, aggregating $18,158.07.)
'Said payments so made by defendant to plaintiff were made under the mistaken belief that said payments were lawful and that defendant was liable to plaintiff for the price charged by plaintiff for oil so shipped to defendant, when in fact defendant was not so liable, and the payments so made by defendant were wholly unlawful.
'Wherefore defendant prays that judgment be entered for defendant against plaintiff in the sum of $18,158.07 together with interest * * *.'
In determining whether the petition states a claim or cause of action, the Exhibit A may be considered in connection with allegations of the pleading. Corbin v. Hume-Sinclair Coal Mining Co., 361 Mo. 888, 237 S.W.2d 81; Section 509.130 RSMo 1949, V.A.M.S. We shall assume that the Superintendent of Municipal Utilities, R. R. Howard, had authority to accept plaintiff's offer or bid, that is, that the contract thus completed was entered into pursuant to lawful authority on the part of defendant municipality.
It is provided that, 'No county, city, town, village, school township, school district or other municipal corporation shall make any contract, unless the same shall be within the scope of its powers or be expressly authorized by law, nor unless such contract be made upon a consideration wholly to be performed or executed subsequent to the making of the contract; and such contract, including the consideration, shall be in writing and dated when made, and shall be subscribed by the parties thereto, or their agents authorized by law and duly appointed and authorized in writing.' Section 432.070, supra.
Plaintiff contends the consideration itself, as stated in the contract involved herein, was definite and readily ascertainably at the date of any purchase--each party knew the market price then prevailing and the price of the oil became fixed. Cases cited by plaintiff are those in which no municipality was a party to the contract, and the language of the contract involved by which the consideration was to be determined was different from that of the contract between plaintiff and defendant City. In this connection, it is of interest to notice that the consideration or price defendant City undertook to pay by its contract with plaintiff was not in any certain sum. The price was entirely conditioned on the will of the seller (plaintiff herein).
In Vivian v. Robertson, 176 Mo. 219, 75 S.W. 644, cited by plaintiff, the contract regulated the stated price of the article sold by raising or lowering the price in accordance with the rise and fall of market price of material used in fabricating the article. In Planters' Nut & Chocolate Co. v. Douglas Candy Co., Mo.App., 240 S.W. 473, 474, plaintiff's recovery was limited to the price stated in the order inasmuch as the court construed the order as one for an immediate shipment and the plaintiff-seller so accepted it. The reviewing court had no reason to consider the effect of a statement, 'stamped upon the order', to the effect that future orders were to be accepted at prices ruling on the date of shipment. In Kansas City Breweries Co. v. Ratzer, Mo.App., 198 S.W. 84, the only question considered was one of the interpretation of a contract selling furniture and fixtures which contract stated a ...
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