Crescent Manuf'G Co. v. N. O. Nelson Manuf'G Co.

• Decision Date: 22 March 1890
• Citation: 13 S.W. 503,100 Mo. 325
• Parties: CRESCENT MANUF'G CO. v. N. O. NELSON MANUF'G CO.
• Court: Missouri Supreme Court

13 S.W. 503

100 Mo. 325

CRESCENT MANUF'G CO. v. N. O. NELSON MANUF'G CO.

Supreme Court of Missouri.

March 22, 1890.

CONTRACT — CANCELLATION — DAMAGES.

1. A contract for the manufacture of barbed wire by plaintiff for defendant which provides that "any judicial or legal interference shall act as a cancellation of this contract, if either party so desire," is not canceled by the mere fact that an action was brought to enjoin defendant from selling the wire, but that it was necessary for defendant to give notice of his intention to cancel it on account of such suit.

2. A refusal on the part of defendant to go on with the contract because of alleged excessive and deceptive weights would not be an exercise of the right of cancellation reserved in the contract.

3. Where defendant refused to go on with the contract, and to furnish wire to be manufactured as provided by the contract, plaintiff's measure of damages is the difference between the contract price, and the cost of manufacture on the minimum amount of wire defendant agreed to furnish during the unexpired term of the contract.

4. It is no defense to plaintiff's action for breach of the contract that he might have made a contract with another party on equally as good terms.

5. Where a suit is based on two causes of action, one a contract to manufacture certain articles, the other a running account, the insertion in the count on the latter of certain items which might have been included in the count on the contract is not ground for reversal, even if properly objected to, as it cannot prejudice defendant.

Appeal from St. Louis circuit court; W. H. HORNER, Judge.

Taylor & Pollard, for appellant. Draffen & Williams, Fisher & Rowell, and W. B. Horner, for respondent.

BLACK, J.

Plaintiff and defendant are corporations organized under the laws of this state. The suit is in two causes of action. The first seeks to recover damages for a breach of the following contract: "December 27, 1883. We propose to manufacture for Nelson Manufacturing Company 5,000 pounds of barbed wire per day, commencing January 1st, 1884, and to continue to March 1st, 1884; and from March 1, 1884, to January 1, 1885, 10,000 to 15,000 pounds per day,—all at fifty cents per one hundred pounds, — we to furnish all material, except wire and reels, which they are to furnish, delivered at our factory. We agree to sell to no other St. Louis dealers or manufacturers. Any judicial or legal interference shall act as a cancellation of this contract, if either party so desire. We agree to return in barbed fence wire an amount equal to the number of pounds plain or galvanized wire supplied us. Tare each reel to be five pounds. CRESCENT MANUFACTURING COMPANY. HORACE STONE, Manager. Accepted. N. O. NELSON MANUFACTURING CO. By J. B. CASE, Secretary."

The breach alleged is that defendant refused to furnish the plaintiff with wire from and after the 11th July, 1884, and thereafter refused to comply with the terms of the contract. The second cause of action is for a balance due on a running account. The answer, besides a general denial, sets up three separate defenses and a counter-claim; but, as the case is presented here, it will only be necessary to notice the third defense. In that the defendant sets out that part of the contract which provides that any judicial or legal interference shall act as a cancellation, if either party so desires, and states that in the latter part of May, 1884, suit was instituted in the circuit court of the United States for the eastern district of Missouri by the Washburn & Moen Manufacturing Company and others against the defendant, to restrain it from selling barbed wire; the bill alleging an infringement of certain letters patent, and that the suit was such a legal interference as justified the cancellation of said contract; and defendant determined to cancel the same as soon as the wire it then had on hand was disposed of, and so notified the plaintiff. These matters were put in issue by the reply. The case was tried before a referee, who found for the plaintiff on both causes of action, and assessed the damages on the first at $4,056.30, which amount was reduced by a remittitur to $3,739.36, and on the second in the sum of $352.75, adding interest to the last-named amount. The other facts in the case will be stated in connection with the questions to which they relate.

1. The second cause of action is, as we have said, based upon a running account, with items on both sides. From the exhibit filed therewith, many of the items appear to be for spools of wire at 50 cents per 100 pounds, and other items are for cartage, and for money laid out in the purchase of reels and plain wire. On the hearing before the referee, it was admitted that the items for spools of wire were for barbing wire under the terms of the contract, and thereupon the defendant asked the referee to exclude all the evidence relating to these items, because the petition did not state a cause of action for work and labor done. The point is now made that the plaintiff had no right to split up its cause of action into two counts, and that the referee erred in not requiring defendant to elect upon which cause of action it would proceed to trial. We are unable to see how any such a question is before us on this record. The objection made before the referee does not even suggest the proposition that plaintiff had improperly split up its cause of action, and the referee does not appear to have ever passed upon, and to have been asked to pass upon, any such a question. Besides this, the objection actually made before the referee was obviated by an amendment of the petition by interlineation. There were items in the second cause of action which could not have been recovered by declaring on the contract, because they do not come within its provisions, but are for money laid out and expended by plaintiff at the request of defendant. The plaintiff could not, therefore, have been required to elect as to which cause of action it would proceed to trial. These items for barbing wire, and possibly some of the other items of the account, might have been included in the count based upon the written contract; but we are unable to see that defendant was in the least prejudiced by including...