Brown v. Trinidad Asphalt Manufacturing Co.

• Decision Date: 17 March 1908
• Citation: 109 S.W. 22,210 Mo. 260
• Parties: BROWN, Appellant, v. TRINIDAD ASPHALT MANUFACTURING COMPANY
• Court: Missouri Supreme Court

109 S.W. 22

210 Mo. 260

BROWN, Appellant, v. TRINIDAD ASPHALT MANUFACTURING COMPANY

Supreme Court of Missouri, Second Division

March 17, 1908

Appeal from St. Louis City Circuit Court. -- Hon. Moses N. Sale Judge.

Affirmed.

Virgil Rule and Bland & Cave for appellant.

(1) The contract, for the breach of which this suit was brought, is a contract to manufacture. The situation of the parties plaintiff being, and being known by defendant to be, a manufacturer, and defendant seeking to obtain the exclusive agency in certain territory for the sale of plaintiff's goods, and their previous dealings, clearly indicate that this contract was understood to be a manufacturing contract and the contract itself, when taken in its entirety, can bear no other interpretation. Geo. Delker & Co. v. Hess Spring & Axle Co., 138 F. 647; Western Hardware Company v. Bancroft-Charnley Steel Co., 116 F. 176; Gardner v. Deeds & Hirsig, 4 L. R. A. 742; Hadley-Dean Glass Company v. Highland Glass Co., 143 F. 242; Chapman v. Railroad, 114 Mo. 542, 146 Mo. 481; Berthold v. Const. Co., 165 Mo. 280. (2) Defendant, under the contract, had the option of ordering all the asphalt provided for of any one grade, saving and excepting "B" grade, of which it was limited to 10% of the total amount, or from all of the grades, and it was defendant's duty to give to the plaintiff, from time to time, during the continuance of the contract, reasonable notice of the grades and amounts it desired, and there was no obligation resting on the plaintiff to manufacture the asphalt until it was so ordered. Ault v. Dustin, 100 Tenn. 366; George Delker & Co. v. Hess Spring & Axle Co., supra; Kingman & Company v. Western Mfg. Co., 92 F. 486. (3) (a) Defendant having failed to order the asphalt, plaintiff was not warranted in manufacturing it and throwing it on the market and thereby increasing, perhaps, the damages. And, if he had done so, such action would not be binding on defendant. Kingman Mfg. Co. v. Western Mfg. Co., 92 F. 486; Gardner v. Deeds & Hirsig, supra; Belle of Bourbon Co. v. Leffler, 84 N.Y.S. 385; Cameron v. White, 74 Wis. 425. (b) Nor was plaintiff obligated to make other contracts for asphalt for the unexpired time. He had the right to make as few or as many other contracts as he saw fit whilst executing the contract with defendant, and he is entitled to the profits which he might have made on this particular contract. Crescent Mfg. Co. v. Nelson Mfg. Co., 100 Mo. 325. (4) Under all the authorities he was clearly entitled to compensation for the breach of defendant, and his compensation is to be measured by the profit he would have made if he had been permitted to complete the contract -- the difference between the cost of manufacture and the contract price. Where a contract for the manufacture and delivery of goods is repudiated by the vendee before the goods are manufactured, the measure of the vendor's damages is the difference between the contract price and the cost of manufacture. Hadley-Dean Glass Co. v. Highland Glass Company, supra; Western Hardware Co. v. Bancroft-Charnley Steel Co., supra; Gardner v. Deeds & Hirsig, supra; Kingman v. Western Mfg. Co., supra; Black River Lumber Co. v. Warner, 93 Mo. 374; Crescent Mfg. Co. v. Nelson Mfg. Co., 100 Mo. 325; Hammond v. Beeson, 112 Mo. 198; Chapman v. Railroad, 146 Mo. 481; Berthold v. Const. Co., 165 Mo. 280; Roehm v. Horst, 178 U.S. 1; Beardsley v. Smith, 61 Ill.App. 340; and numerous cases cited in 4 L. R. A. at page 742, note; Hale v. Trout, 35 Cal. 229; Winaus v. Lumber Co., 66 Cal. 61.

W. B. Homer for respondent.

(1) "The general and just rule for measuring the damages for the breach of a contract for the sale of personal property is the difference between its market value and its contract price, because the vendor is presumed to have the property on hand; and his profits, if the contract is performed, and the loss if it is broken, is the difference between the price he can sell the property for in the market, and the price he is entitled to receive under the contract." Rickey v. Ten Broeck, 63 Mo. 567; Halliday v. Lesh, 85 Mo.App. 289; Black River Lumber Co. v. Warner, 93 Mo. 374; Gaibout v. Clark, 24 Mo.App. 426; Campbell v. Woods, 122 Mo.App. 719; Parlin v. Boatman, 84 Mo.App. 67; Bank v. Ragsdale, 171 Mo. 168; Nelson v. Hirsch, 102 Mo.App. 498; Kingman v. Western Mfg. Co., 92 Fed. (C. C. A.) 486. (2) The purpose of pleading, when such pleading relates to a written document, is to make clear to the court the legal effect of such document. Anderson v. Gains, 156 Mo. 669; Hood v. Nicholson, 137 Mo. 414. (3) Where it is attempted to fix the damages of a failure to accept property sold as other than the difference between the market value and the agreed price upon the ground that there is no market value for the property, the burden rests on the plaintiff to show that there is no market value at the place of delivery. Masterton v. Mayor, 7 Hill 61; Todd v. Gamble, 21 N.Y.S. 739, 67 Hun 38. (4) Where it is claimed that a party is entitled to profits as part damages, it is necessary to set out such profits in the petition. Wilson v. Russler, 91 Mo.App. 281; Ridgeley v. Mooney, 16 Ind.App. 362, 45 N.E. 348; Tufts v. Bennett, 163 Mass. 398.

OPINION

BURGESS, J.

Plaintiff brought suit to recover of the defendant six thousand dollars damages for breach of contract.

After alleging the incorporation of the defendant company under the laws of Missouri, with chief office and place of business in the city of St. Louis, the petition proceeds as follows:

"Plaintiff states further that on November 21, 1900, and at all times hereinafter mentioned, he was engaged in business in the city of Los Angeles, county of Los Angeles, State of California, under the commercial name, style and title of the Southern Refining Company; that the business in which he was engaged under said name was that, among other things, of manufacturing, producing, dealing in and selling asphalt, and on said date he sold, and had for some time prior thereto been selling, to the defendant asphalt produced and manufactured by him under the name and style aforesaid.

"Plaintiff states further that on said 21st day of November, 1900, at the city of Los Angeles, State of California, plaintiff and defendant, by and through its agent, entered into a certain contract, hereinafter more specifically set forth, which said contract was made and delivered subject to the ratification thereof by defendant's board of directors, and was thereafter by said board of directors, on the 27th day of November, 1900, duly ratified, approved and accepted."

The petition then alleges "that by said contract, for and in consideration of the covenants and stipulations therein mentioned to be kept and performed by plaintiff and defendant, plaintiff agreed to sell and deliver to defendant, f. o. b. cars at plaintiff's factory in the city and county of Los Angeles, 1200 tons of asphalt, and defendant agreed to purchase and pay for said asphalt according to grade and prices hereinafter specifically set forth;" and further alleges "that it was agreed between plaintiff and defendant that said asphalt should consist of the following grades, sold and purchased at the following prices." Here follow five different grades of asphalt at certain prices per ton, which grades are described as "B", "C", "D", "DX" and "G". After certain other allegations which are unnecessary to be stated here, the petition proceeds:

"Plaintiff states that thereafter, and beginning with the month of January, 1901, he and defendant entered into the execution of said contract, and that at and during all the times in said contract mentioned plaintiff was able, ready and willing to perform, and did duly perform all the conditions on his part in such contract covenanted and agreed therein by him to be performed, but that after so entering upon the execution of said contract defendant neglected, failed and refused to perform the conditions on its part in said contract covenanted and agreed to be by it performed, and defendant neglected, failed and refused at and during the times in said contract specified therefor, or at all, to purchase and pay for the asphalt in said contract by it agreed to be purchased and paid for, any quantity in excess of three hundred and seventy-five and 1445-2000 tons, by reason whereof plaintiff has been damaged in the sum of six thousand dollars.

"Wherefore plaintiff prays judgment against defendant for said sum of six thousand dollars, together with interest thereon from the first day of January, 1902, and for his costs in this behalf expended."

The material parts of the contract introduced in evidence are as follows:

"That for and in consideration of the covenants and stipulations hereinafter mentioned to be kept and performed by the respective parties hereto, it is hereby agreed between said parties as follows:

"That first party [plaintiff] will sell and deliver to said second party [defendant] hereto, f. o. b. cars at first party's factory, in said city and county of Los Angeles, twelve hundred tons of asphalt, and that said second party will purchase and pay for same, said asphalt to be so delivered at the rate of one hundred tons of two thousand pounds each, gross weight, per month, or as near such rate as shipment in carload lots will permit. That said asphalt shall consist of the following grades, and be sold and purchased at the following prices, to-wit:

"B grade of asphalt cement, at $ 21.00 per ton;

C grade of asphalt cement, at 17.00 per ton;

D grade of asphalt cement, at 15.50 per ton;

DX grade of asphalt cement, at 15.50 per ton;

G grade of liquid asphalt at 18.00 per ton; and be of first class quality and equal to the grades heretofore...