Concrete Steel Co. v. Reinforced Concrete Co.
| Decision Date | 05 June 1934 |
| Docket Number | No. 22337.,22337. |
| Citation | 72 S.W.2d 118 |
| Parties | CONCRETE STEEL CO. v. REINFORCED CONCRETE CO. |
| Court | Missouri Court of Appeals |
Appeal from St. Louis Circuit Court; M. Hartmann, Judge.
"Not to be published in State Reports."
Action by the Concrete Steel Company against the Reinforced Concrete Company, wherein defendant filed a counterclaim. Judgment for defendant on plaintiff's cause of action and on defendant's counterclaim, and plaintiff appeals.
Affirmed.
Cullen, Fauntleroy & Edwards and Edwin C. Luedde, all of St. Louis, for appellant.
Seneca C. Taylor, of St. Louis, for respondent.
BENNICK, Commissioner.
This is an action for the balance alleged to be due upon an account for items of reinforcing steel sold and delivered to defendant by plaintiff between April 20, 1923, and May 27, 1924.
Plaintiff, Concrete Steel Company, is a corporation engaged in the fabrication of reinforcing steel, by which is meant the cutting of steel bars into appropriate lengths as they come from the mill, bending them into whatever shape is desired, and then assorting, tagging and putting the fabricated bars into bundles so as to show the building, floor, and number as called for on the order list. Its principal offices are in New York City, though it has a western office in Chicago.
Defendant, Reinforced Concrete Company, is a Missouri corporation, with its offices, warehouse, and storage yard all in the city of St. Louis. Its business is that of putting in the concrete and reinforcing steel in the process of erection of buildings.
The major portion of the items of debit and credit in question in this action arose in connection with supplies furnished for, and work done upon, the Veterans' Hospital at Tupper Lake, in the Adirondacks, in the northern part of the state of New York. A total of eight buildings were to be erected over a space approximating some fifty city blocks; and defendant was a subcontractor on the job under the W. M. Sutherland Construction Company, which was the general contractor with the United States government.
Defendant purchased its reinforcing steel for the job from plaintiff; and, pursuant to orders from defendant, some six hundred tons of steel were supplied, being shipped in bundles weighing from five to six tons each, and each containing from three hundred to five hundred rods. The controversy arises principally from the fact that certain of the shipments were not accurately fabricated when delivered on the job, which involved and necessitated separating, assorting, tagging, and redistributing the materials by defendant at considerable trouble and expense. Plaintiff's explanation of the confusion in shipment was that the same had necessarily resulted from the hurrying of orders and the making of changes in shipments to meet defendant's needs.
Further controversy was over defendant's claims for credits for freight paid by it in excess of the freight charges from Pittsburgh to Tupper Lake, the agreement having been that the steel would be shipped out of Pittsburgh and that defendant would pay the freight, whereas the shipments were made in many instances from Chicago, Camden, N. J., and other points.
The action was instituted by plaintiff on December 4, 1924. However, the trial was had upon an amended petition filed March 12, 1930, in which plaintiff alleged debits of $32,860.27, credits of $29,382.57, and a balance due plaintiff of $3,477.70.
Incidentally, in its original petition, which was offered in evidence by defendant, the figures for the respective debits and credits were different; the balance claimed to be due under the original petition being $726.87 more than under the amended petition. By offering the original petition in evidence, defendant sought to have a doubt cast upon the accuracy of plaintiff's calculations.
Defendant had originally answered by a bare general denial, which was filed on June 22, 1925. Subsequently, on November 19, 1929, an amended answer and counterclaim was filed; and, after plaintiff filed its amended petition, a second amended answer and counterclaim was filed by defendant on November 16, 1931.
Such second amended answer was a general denial, a plea of payment in full, and, upon the theory that the account was an open, running, and mutual one, a claim of additional credits on the account sued on in the sum of $4,160.76. All of such matters were pleaded purely as matters of defense. The claim of additional credits was for sums alleged to be due defendant upon dealings between it and plaintiff, including the Tupper Lake job, from November 9, 1923, to November 26, 1924.
By way of counterclaim, defendant set up the same claim for credits as had theretofore been pleaded purely defensively and prayed for judgment against plaintiff in the sum of $4,160.76.
For its reply to the answer proper, plaintiff denied that the account had been paid in full, or that defendant was entitled to any further credits, or that the items so claimed as credits were part of the open, running, and continuous account sued on in the petition.
For answer to defendant's counterclaim, plaintiff set up that all of the items thereof were barred by limitation of time. Further answering, it admitted that, save for the bar of the statute of limitations, defendant would be entitled to recover upon all the items of its counterclaim except three; the amount of such admittedly correct items being $869.85. The items left in dispute included the item for the expense incurred in refabricating the materials for the Tupper Lake job, which, of course, was the principal item going to make up the counterclaim.
A jury was waived, and the cause heard before the court alone, resulting in the entry of a judgment in favor of defendant upon plaintiff's cause of action, and likewise in favor of defendant upon its counterclaim in the sum of $869.85.
Both parties filed motions for a new trial, and both motions were overruled. Defendant took no further action, but plaintiff has brought the case to this court on appeal by the usual steps.
By what process the court arrived at its finding and judgment is by no means clear. It would appear, however, that the finding for defendant on its counterclaim necessarily precluded any finding upon the same items of credit as pure matters of defense to plaintiff's cause of action, so that, in finding for defendant upon plaintiff's cause of action, the court must have considered that the evidence was insufficient to have made out a case in plaintiff's behalf. And, in finding for defendant on its counterclaim in the sum of $869.85, it would clearly seem that the court based its finding upon the allegations in plaintiff's answer to the counterclaim, admitting the correctness of the items thereof which totaled such amount, provided they were not barred by limitation of time. We have no way of ascertaining upon what theory, or for what reason, the court rejected the other items of the counterclaim aggregating the sum of $3,290.91; but, if error was committed in that respect, it was error of which only defendant could complain (as it did in its motion for a new trial), but, inasmuch as no appeal was taken by defendant, that feature of the case is not here for our review.
Following the line of argument as it is set forth in plaintiff's brief, it appears that the two important questions in the...
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