City of New Madrid v. Associated Elec. Co-op., Inc., No. 10850

CourtMissouri Court of Appeals
Writing for the CourtGREENE; Neither decision supports plaintiff's plea. The Creve Coeur case does state that we should review the case upon both the law and the evidence, weigh the evidence, and render such judgment as the trial court should have given, but as correctly
Citation582 S.W.2d 727
PartiesCITY OF NEW MADRID, Missouri, Plaintiff-Appellant, v. ASSOCIATED ELECTRIC COOPERATIVE, INC., Defendant-Respondent.
Docket NumberNo. 10850
Decision Date01 June 1979

Page 727

582 S.W.2d 727
CITY OF NEW MADRID, Missouri, Plaintiff-Appellant,
v.
ASSOCIATED ELECTRIC COOPERATIVE, INC., Defendant-Respondent.
No. 10850.
Missouri Court of Appeals, Southern District, Division Three.
June 1, 1979.

Page 728

David E. Blanton, James D. Sickal, Sikeston, for plaintiff-appellant.

Eugene E. Andereck, Allen W. Baker, Jefferson City, for defendant-respondent.

GREENE, Judge.

Plaintiff is a city of the fourth class, incorporated under the laws of the state of Missouri. Defendant is a co-operative formed for the purpose of generating or transmitting electrical energy.

Plaintiff issued and sold revenue bonds for the construction of a 600,000 kilowatt coal-fired generating plant and related facilities. In 1968, plaintiff entered into a "Power Sales, Interconnection and Operating Agreement" with defendant, under which it was agreed that defendant was to supervise construction of the plant; to furnish, maintain and operate certain transmission lines; and to perform other functions necessary to the operation of the power plant. In return, defendant was to receive the usage for sale of all of the electrical power generated by the plant, with the exception of such power that was reserved by the plaintiff under an agreement with defendant.

The parties further agreed, by written contract, that plaintiff reserved, but was not obligated to take, a maximum of 25,000 kilowatts for use in its distribution system. In 1971, an amended agreement was consummated, whereby an additional amount of power, not exceeding 30,000 kilowatts, was reserved by plaintiff for sale to its customers. The agreements were subject to certain prerequisites, including formal written notice of intention to take the power, mutual agreement as to a delivery point and a sliding scale of costs.

In 1974, plaintiff began negotiations with the city of Kennett, Missouri, with the purpose being the proposed sale of 10,000 kilowatts from the 30,000 kilowatt power block that had been reserved to plaintiff by reason of the amended agreement. Plaintiff advised defendant of its intention to sell the power in question to the city of Kennett. After considerable discussion and negotiations, defendant advised plaintiff that it would not deliver the power to plaintiff for the reasons that the city of Kennett was not a "customer" of plaintiff and that there had never been a mutual agreement as to a delivery point. Kennett then obtained the power that it needed from another source.

Plaintiff then filed a three count lawsuit against defendant. After a recital of the alleged facts, plaintiff, in count one, prayed for a declaratory judgment, requesting that the court declare the rights and duties of the parties based on the facts and the law; that the court state whether the notice provision of the contract had been complied with or waived; whether the contract, as amended, restricted plaintiff's right to sell power to customers outside of its corporate boundaries; and for such other relief on count one as the court deemed just.

In count two, plaintiff requested specific performance of the contract and prayed that defendant be required to deliver the 10,000 kilowatts in controversy to plaintiff. In count three, plaintiff prayed for damages for breach of contract.

The case was tried before the trial court on October 5, 1976. On October 21, 1976, the court entered findings of fact, conclusions of law, and a judgment. The findings of fact, 41 in number, need not be set out here, as a verbatim recital would not be germane to the issues. It suffices to say that the findings of fact do not contain any directives or pronouncements regarding the rights and duties of the parties under the contracts in question. The court's conclusions of law and judgment are as follows.

Page 729

"CONCLUSIONS OF LAW

1. This court has jurisdiction of the parties and the subject matter of this lawsuit.

2. There is a justiciable controversy between the parties regarding the construction of the...

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4 practice notes
  • Marriage of McSwain, In re, No. 11398
    • United States
    • Court of Appeal of Missouri (US)
    • June 24, 1980
    ...issue between the parties and thus lacks finality. Kahn v. Prahl, 414 S.W.2d 269 (Mo.1967); City of New Madrid v. Associated Elec. Co-op, 582 S.W.2d 727 (Mo.App.1979). Further, it fails to ascertain the status of the property of the parties as marital or non-marital and distribute the same ......
  • Kaplan v. Greenberg, No. 48194
    • United States
    • Court of Appeal of Missouri (US)
    • April 2, 1985
    ...S.W.2d 418, 419 (Mo.App.1982); Busch v. Busch, 618 S.W.2d 244, 245 (Mo.App.1981); City of New Madrid v. Associated Electric Cooperative, 582 S.W.2d 727, 729 (Mo.App.1979). Thus, in this action, the judgment must put to rest the disposition of the assets involved. We are concerned with the t......
  • Denton v. Ipock, No. 12753
    • United States
    • Court of Appeal of Missouri (US)
    • June 1, 1982
    ...to dispose of the same. Accordingly, this appeal is premature and is dismissed. City of New Madrid v. Associated Electric Cooperative, 582 S.W.2d 727 MAUS, C. J., and FLANIGAN and PREWITT, JJ., concur. ...
  • Macon-Atlanta State Bank v. Gall, MACON-ATLANTA
    • United States
    • Court of Appeal of Missouri (US)
    • February 8, 1983
    ...court has failed to dispose of all issues raised by the pleadings." City of New Madrid v. Associated Electric Cooperative, Inc., 582 S.W.2d 727, 730 The parties are directed to New Style Homes, Inc. v. Fletcher, 600 S.W.2d 634 (Mo.App.1980) (per curiam), for guidance in accelerating an......
4 cases
  • Marriage of McSwain, In re, No. 11398
    • United States
    • Court of Appeal of Missouri (US)
    • June 24, 1980
    ...issue between the parties and thus lacks finality. Kahn v. Prahl, 414 S.W.2d 269 (Mo.1967); City of New Madrid v. Associated Elec. Co-op, 582 S.W.2d 727 (Mo.App.1979). Further, it fails to ascertain the status of the property of the parties as marital or non-marital and distribute the same ......
  • Kaplan v. Greenberg, No. 48194
    • United States
    • Court of Appeal of Missouri (US)
    • April 2, 1985
    ...S.W.2d 418, 419 (Mo.App.1982); Busch v. Busch, 618 S.W.2d 244, 245 (Mo.App.1981); City of New Madrid v. Associated Electric Cooperative, 582 S.W.2d 727, 729 (Mo.App.1979). Thus, in this action, the judgment must put to rest the disposition of the assets involved. We are concerned with the t......
  • Denton v. Ipock, No. 12753
    • United States
    • Court of Appeal of Missouri (US)
    • June 1, 1982
    ...to dispose of the same. Accordingly, this appeal is premature and is dismissed. City of New Madrid v. Associated Electric Cooperative, 582 S.W.2d 727 MAUS, C. J., and FLANIGAN and PREWITT, JJ., concur. ...
  • Macon-Atlanta State Bank v. Gall, MACON-ATLANTA
    • United States
    • Court of Appeal of Missouri (US)
    • February 8, 1983
    ...court has failed to dispose of all issues raised by the pleadings." City of New Madrid v. Associated Electric Cooperative, Inc., 582 S.W.2d 727, 730 The parties are directed to New Style Homes, Inc. v. Fletcher, 600 S.W.2d 634 (Mo.App.1980) (per curiam), for guidance in accelerating an......

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