Doran, Inc. v. James A. Green, Jr. & Co., WD

• Decision Date: 03 May 1983
• Docket Number: No. WD,WD
• Court: Missouri Court of Appeals
• Parties: DORAN, INC., Respondent, v. JAMES A. GREEN, JR. & CO., Appellant, v. John W. WHITAKER and Michael J. O'Neill, d/b/a O'Neill & Whitaker, Inc., Respondents. 33430.

Page 106

654 S.W.2d 106

DORAN, INC., Respondent, v. JAMES A. GREEN, JR. & CO., Appellant, v. John W. WHITAKER and Michael J. O'Neill, d/b/a O'Neill &

Whitaker, Inc., Respondents.

No. WD 33430.

Missouri Court of Appeals,

Western District.

May 3, 1983.

Motion for Rehearing and/or Transfer to

Supreme Court Overruled and Denied

June 28, 1983.

George Murray, III, Charles C. Shafer, Jr., Kansas City, for appellant.

Thomas V. Bender, Linde, Thomson, Fairchild, Langworthy, Kohn & Van Dyke, Kansas City, for respondent Doran, Inc.

Robert W. Cotter, Griffin, Dysart, Taylor, Penner & Lay, Kansas City, for respondents Whitaker and O'Neill.

Before SOMERVILLE, C.J., and CLARK and MANFORD, JJ.

PER CURIAM.

Doran, Inc. (Doran) filed suit against James A. Green, Jr. & Co. (Green & Co.) seeking damages for negligent performance of an oral contract for services. Green &amp Co., in turn, as third-party plaintiff, filed a third-party petition against two of its former employees seeking judgment "for a pro rata share of any judgment" returned in favor of Doran against Green & Co.

The case was tried to the court, resulting in a judgment for $1,962.45 in favor of Doran and against Green & Co., a directed verdict in favor of third-party defendant John W. Whitaker at the close of all the evidence, and a judgment in favor of third-party defendant Michael J. O'Neill and against third-party plaintiff Green & Co.

Doran, a Missouri corporation, is an importer and distributor of artificial flowers. Green & Co., likewise a Missouri corporation, is a "custom house broker". Doran and Green & Co. orally agreed for Green & Co. to handle on Doran's behalf all "customs" and "duty tariff" matters with the United States Customs Service regarding Doran's importation of a shipment of artificial fabric flowers from Taiwan. Oral agreements for similar services had previously been entered into between the parties on a case to case basis.

Green & Co., after performing the oral contract with Doran regarding the shipment of flowers from Taiwan, submitted a statement for services (marked "invoice" in the lower left corner) to Doran in the amount of $2,062.47, of which $1,962.45 represented payment of an import duty on said shipment of artificial fabric flowers on Doran's behalf. Doran timely remitted the sum of $2,062.47 to Green & Co. Thereafter, Doran learned that no duty was owed on said shipment of flowers, and the present litigation ensued.

The president of Green & Co. candidly admitted that no duty was owed on the shipment of flowers in question. With equal candor, he admitted that Green & Co. erroneously paid a duty in the amount of $1,962.45 on the shipment on Doran's behalf, billed the amount thereof to Doran, and that Doran paid the billed amount to Green & Co. The invoice rendered by Green & Co. to Doran contained, on the reverse side thereof in fine print, two provisions which Green & Co. relies on to defeat Doran's claim. The first being that Green & Co.'s liability to a customer for negligence or fault was limited to "$50.00 Per Shipment" and the second being that any claim must be presented to its office within one hundred eighty (180) days from date of shipment by written, sworn statement and any suit thereon must be instituted within six months after presentation of said claim. Doran's chief executive officer testified that he was totally unaware of the two printed provisions contained on the reverse side of the Green & Co. invoice. He further testified that the subjects of the two printed provisions were never discussed or agreed upon as part of the oral contract for services. No contradictory evidence re the oral agreements was offered by Green & Co.

Green & Co. raises two points of error on appeal, each dealing with separate facets of the multiple litigation: (1) the court erred in entering judgment in favor of Doran and against Green & Co. because Doran's cause of action was barred by the "limitation of damages" and "time for presenting claims" provisions contained on the reverse side of the invoice rendered by Green & Co. to Doran; and (2) the court erred in sustaining a directed verdict in favor of third-party defendant Whitaker and entering judgment in favor of third-party defendant O'Neill and against third-party plaintiff Green & Co. because the admittedly erroneous duty paid by Green & Co. and reimbursed by Doran was the result of negligence on the part of Whitaker and O'Neill.

Turning to point (1), it is patent that Doran's claim exceeded the amount set forth in the limitation of damages provision, and it stands undisputed that it was not filed within the time limitation provision, as respectively set forth on the reverse side of the invoice. The fallacy of Green & Co.'s position, however, is that it summarily assumes that the provisions it relies on were contractually binding on Doran. Green & Co.'s first point will be disposed of in this limited context, absent consideration of any ramifications of public policy re clauses limiting damages or § 431.030 RSMo 1978 re clauses limiting time to institute any suit or action.

Although neither party requested and the trial court made no findings of fact or conclusions of law, an oral observation of record by the trial court at the close of all the evidence reveals that it had its finger on the heart of the problem. In overruling a "motion to dismiss" made by Green & Co. at the close of all the evidence, the trial court stated: "Well, I am going to have to tell you that I think there is just no agreement as to that $50 and that presentment, so I am going to have to overrule your motion to dismiss". (Emphasis added).

It is fundamental that a person cannot be contractually bound by an instrument to which he has not assented. Macy v. Day, 346 S.W.2d 555, 558 (Mo.App.1961) and cases therein cited. Although acceptance without objection of a document which plainly purports to be a contract may give rise to an implication of assent, no such implication arises when the document does not purport to be a contract. Iowa-Missouri Walnut Co. v. Grahl, 237 Mo.App. 1093, 170 S.W.2d 437, 440 (1943); Farm & Auto Supply v. Phoenix Fuel Co., 103 Ariz. 344, 442 P.2d 88, 92-93 (banc 1968); and Tanenbaum Textile Co. v. Schlanger, 287 N.Y. 400, 40 N.E.2d 225, 226-27, 28 N.Y.S.2d 729, 730-31 (1942).

The invoice submitted by Green & Co. to Doran did not purport to be a contract. To the contrary, "[a]n invoice, as such, is no contract ... [a]n invoice is a mere detailed statement of the nature, quantity and the cost or price of the things invoiced". Tanenbaum v. Schlanger, supra, 40 N.E.2d at 226, 28 N.Y.S.2d at 730. Tanenbaum is a case very much in point. A series of sales were orally agreed upon by both the seller and the buyer. No mention of arbitration was made in the oral agreements. The sales were followed by invoices on which were stamped in red ink "All controversies arising from the sale of these goods are to be settled by arbitration." A controversy subsequently arose out of the transactions, which the seller claimed the parties were contractually bound to submit to arbitration. The Court of Appeals of New York held otherwise, and, their rationale for doing so, approved and adopted by this court, is hereinafter set forth.

"Each of the transactions in question was executed in accordance with an agreement that had been made without mention by either party of the subject of arbitration. It was not until that stage had been reached in each instance that the invoice was made out and stamped with the words 'All controversies arising from the sale of these goods are to be settled by arbitration.' The whole question is thus one of the effect of Schlanger's silence in the face of such separate offers for arbitration, each of which looked back to a single sale and delivery theretofore made.

The applicable principles have been stated by this court in this manner: 'A party cannot be held to contract where there is no assent. Silence operates as...