Coonis v. City of Springfield

• Decision Date: 08 December 1958
• Docket Number: No. 2,No. 46799,46799,2
• Citation: Coonis v. City of Springfield, 319 S.W.2d 523 (Mo. 1958)
• Parties: Lee COONIS and Winfred Fortner, d/b/a Coonis and Fortner, a Co-Partnership, Appellants, v. CITY OF SPRINGFIELD, Missouri, a Municipal Corporation, Respondent
• Court: Missouri Supreme Court

Page 523

319 S.W.2d 523

Lee COONIS and Winfred Fortner, d/b/a Coonis and Fortner, a Co-Partnership, Appellants, v.CITY OF SPRINGFIELD, Missouri, a Municipal Corporation, Respondent.

No. 46799.

Supreme Court of Missouri, Division No. 2.

Dec. 8, 1958.

Motion to Modify or for Rehearing or Transfer to Court en

Banc Denied Jan. 12, 1959.

Keith V. Williams, Springfield, B. H. Clampett, Springfield, for appellants.

John B. Newberry, Springfield, for respondent.

BOHLING, Commissioner.

Lee Coonis and Winfred Fortner, partners doing business as Coonis and Fortner, sued the City of Springfield, a municipal corporation, for 'loss of profits' in the amount of $19,000 occasioned by the alleged breach by the defendant of a contract for the collection of garbage in said city.The case was tried in Webster County upon a change of venue.The jury returned a verdict for $19,000.Defendant's motion for new trial was sustained on the grounds that the $19,000 damages awarded rested in speculation in that, briefly stated, the jury did not consider as items of cost of performance from the date of the breach of the contract to its termination (1) the reasonable value of plaintiffs' own services and (2) depreciation, the wear and tear entailed on plaintiffs' equipment in completing the contract.Plaintiffs appeal from the order granting a new trial.

Plaintiffs and defendant entered into a contract May 25, 1953, for the collection of garbage in defendant city by plaintiffs for a period of one year commencing June 1, 1953, with a provision for an extension of the contract for an additional three years, for an annual consideration to plaintiffs of $50,210.

In November, 1955, the city extended its boundaries, practically doubling its corporate area by taking in approximately seventeen square miles of territory.The contract of May 25, 1953, did not provide for additional compensation to plaintiffs for the collection of garbage within the annexed territory.Following plaintiffs' extension of service to the annexed territory, conferences were had with respect to a modification or change in said contract.

On July 16, 1956, defendant, by resolution of its City Council, authorized the City Manager to enter into an agreement with plaintiffs mutually rescinding the contract of May 25, 1953, said agreement to provide that all parties should be relieved of all further obligations under said contract.

Defendant advertised for bids for a supplemental or new contract for the collection of garbage within its corporate limits, said bids to be submitted at 9:00 o'clock a. m., Monday, July 30, 1956.The city was divided into four districts by lines extending east and west, with District I the northernmost and District IV the southernmost district, for the purpose of receiving the bids.Division Street, hereinafter mentioned, is an east-west street located in the north part of District II.

On July 26, 1956, plaintiffs and defendant, by its City Manager, entered into a 'Mutual Agreement of Recission' which, after preliminary recitals, provided (emphasis supplied):

'Now, Therefore, for and in consideration of the mutual covenants and promises herein contained, it is agreed and understood by and between the parties hereto that in the event the City of Springfield, Missouri, shall accept the bids for a supplemental or new garbage collection contract at the time of opening thereof, i. e., 9:00 o'clock, Monday, the 30th day of July, 1956, said contract dated May 25, 1953, pursuant to Special OrdinanceNo. 11647, shall ipso facto become null, void, and of no legal effect at 9:00 o'clock a. m., the 6th day of August, 1956, and the parties to said contract hereby release, acquit and discharge the other of and from any and all responsibility or liability thereof or arising therefrom.

'It is Further Agreed and Understood by and between the parties hereto that in the event the City of Springfield, Missouri, shall not accept the bids for a supplemental or new garbage collection contract at the time of opening thereof at 9:00 o'clock a. m., Monday, July 30, 1956, then the City of Springfield agrees to assume the responsibilities and duties of garbage collection in that portion of said corporate limits North of Division Street, extending East and West, and said contract of May 25, 1953, pursuant to Special OrdinanceNo. 11647, shall remain in full force and effect, pursuant to the terms therof, the duration thereof, and the full consideration thereof for that portion of said corporate limits South of Division Street, extending East and West.'

Bids were submitted by Henry Carr and Max L. Murray for the collection of garbage in the several districts into which the city had been divided.On the morning of July 30, 1956, at approximately 9:00 o'clock, said bids were publicly opened and read by the City Manager.He announced that he considered the bids excessive; that he would not take any action on them at that time, and that he would submit them for the advice of the City Council that night, because they were higher than originally anticipated.He testified a continuation of the Coonis and Fortner contract would effect a substantial saving and the situation merited careful study.

The City Council, on July 30, 1956, by resolution ratified and adopted the agreement of July 26, 1956, entered into by the City Manager and Coonis and Fortner.

Following the City Manager's report on the bids received, the City Council, on motion, referred the matter back to the City Manager for decision.On July 31, 1956, the City Manager, on behalf of the city, entered into new contracts with Mr. Carr and with Mr. Murray for the collection of garbage within the city.

The instant action, based on the 'Mutual Agreement of Recission' of July 26, 1956, was filed August 3, 1956.Plaintiffs' theory was that time was of the essence of said contract and defendant breached the contract by not accepting or rejecting the bids submitted for garbage collection at 9:00 o'clock a. m., Monday, July 30, 1956, and by thereafter entering into contracts with Carr and Murray for the collection of the garbage and preventing plaintiffs from performing their said contract of July 26, 1956.

The sole affirmative defense submitted by defendant was that plaintiffs waived defendant's breach of the contract.The submitted issues were found by the jury in favor of plaintiffs and against defendant.Many material facts were stipulated; for instance: It was stipulated that plaintiffs'were at all times ready, willing and able and did tender performance of their alleged contract with defendantCity of Springfield, Missouri, on or about Monday, the 6th day of August, 1956.'

Plaintiffs' contract provided for an annual payment by defendant of $50,210, or $4,184.16 a month.Plaintiffs performed their contract until August 7, 1956, and defendant paid plaintiffs $539.87 for their performance in August, 1956.Plaintiffs would have been entitled to receive $41,301.73 ($41,841.60 less $539.87) had they continued to perform the contract until its termination on May 31, 1957.

Plaintiff Forther placed the loss of profits at $19,000.He said his partner, Coonis, took care of all the business.Plaintiffs testified they had seven garbage trucks, and five trucks with two men to a truck would be required to collect the garbage south of Division Street.Plaintiff Coonis testified that he estimated the partnership profits for the ten months ending May 31, 1957, at $1,900 to $2,000 a month; that during June and July, 1956, the partnership paid for labor $2,673.21, gasoline and oil $940.23, parts, tires, etc., $154.43, and insurance per truck per year was $175; and that he estimated the cost of operating a truck at $80 to $85 per week.Our estimate, based on his figures, is somewhat higher per truck per week.Plaintiffs' brief proceeds on the basis their expenses would be approximately $2,000 a month.However, Coonis also testified that folowing the extension of the city boundaries in November, 1955, the partnership was not making any money, was about breaking even, and that during June and July, 1956, they were not complying with the contract in that they were making only two instead of the three 'pickups' a week required under the contract.

The conduct of the plaintiffs under the original contract of May 25, 1953, and their testimony warranted a finding that they, in addition to their employees, were to personally engage in the performance of the contract of July 26, 1956; that plaintiffs had been working full time and received their compensation out of the profits of the contract, and that their time was 'worth money.'In arriving at the $19,000 loss of profits plaintiffs gave no consideration to the value of their services as an expense in the performance of the contract.Consult, Annotation50 A.L.R. 1397.

Defendant contends since plaintiffs failed to present any evidence as to what the reasonable value of their services would have been for the remaining ten months of the contract, that it was impossible for the jury without resort to speculation to find for plaintiffs in the sum of $19,000, and the court properly granted a new trial.

In Clark v. Smalley Tie & Timber Co., Mo.App., 180 S.W. 435, 437(stressed on the issue by plaintiffs), defendant contracted with plaintiffs, sawmill operators, to make ties from timber owned by defendant for a specified price per tie, and to deliver the ties to a stated point for a consideration of four cents a tie.After the ties were manufactured, defendant prevented plaintiffs' delivering the ties and plaintiffs sued for the four cents per tie for delivery.The court considered the measure of plaintiffs' recovery was 'the profit of the bargain,' i. e., so much of the full contract price as was their clear profit after deducting expenses.(Defendant also states this is the proper measure of the damages.Dement v. McNail, Mo.App., 281 S.W. 128[1, 4]; second appeal, Mo.App., 4 S.W.2d...