Fairbanks, Morse & Co. v. Midvale Min. & Mfg. Co.

• Decision Date: 29 March 1904
• Citation: 105 Mo. App. 644,80 S.W. 13
• Court: Missouri Court of Appeals
• Parties: FAIRBANKS, MORSE & CO. v. MIDVALE MIN. & MFG. CO.

80 S.W. 13

105 Mo. App. 644

FAIRBANKS, MORSE & CO. v. MIDVALE MIN. & MFG. CO.

St. Louis Court of Appeals. Missouri.

March 29, 1904.

SALES—ACTION FOR PURCHASE PRICE—SUFFICIENCY OF PETITION—COMPLETED CONTRACT OF SALE — DELIVERY—WAIVER—QUALITY OF GOODS—MEASURE OF DAMAGES.

1. Plaintiff, suing for the purchase price of goods, incorporated in its petition its letter to defendant quoting the goods at a certain price, and also defendant's acceptance, specifying as terms one-third cash and balance in 90 days. The answer denied unadmitted allegations of the petition, and then alleged a failure to deliver goods of the quality specified, and also that plaintiff was to furnish an expert workman to install the goods, and give reasonable notice of delivery, but failed to give such notice, and defendant refused to accept them on that account; that it was then agreed that they should remain on defendant's premises, subject to plaintiff's orders, until such time as defendant could be ready to accept them and have them installed, etc. Held that, as this was a tacit admission of the execution of the contract of sale, it cured any defect in the petition in failing to allege an acquiescence by plaintiff in the terms of the defendant's acceptance, so as to show a completed contract.

2. In an action for the purchase price of goods plaintiff alleged a contract to deliver f. o. b. at its place of business, and an actual delivery upon the premises of the defendant. In its answer defendant alleged that when plaintiff offered to deliver the goods it refused to accept them at the time and in the manner offered, and it was then agreed between the parties that the goods should be unloaded and left on defendant's premises, subject to plaintiff's order, until such time as defendant could be prepared to accept them. Held, that the answer showed a waiver of the stipulation in the contract to deliver f. o. b. at plaintiff's place of business, and cured the defect in the petition as to the sufficiency of the delivery.

3. In an action for the purchase price of goods plaintiff alleged a contract to sell goods of a certain quality and character, but did not allege that the goods delivered were of the quality called for. It did allege, however, that it delivered the goods "at and upon the premises of the defendant." Held, that this allegation of delivery and acceptance carried with it the implication that the goods were of the kind and quality warranted, so that the petition as a whole was sufficient.

4. The measure of damages for goods sold, delivered, and accepted under a special contract is the contract price, with legal interest from the date payment became due.

Appeal from St. Louis Circuit Court; Jno. A. Blevins, Judge.

Action by Fairbanks, Morse & Co. against the Midvale Mining & Manufacturing Company. Judgment for plaintiff, and defendant appeals. Affirmed.

Thos. A. Russell, for appellant. Jones & Hocker and A. H. Roudebush, for respondent.

BLAND, P. J.

The parties to the suit are business corporations. Omitting formal parts, the petition is as follows:

"For cause of action plaintiff states that heretofore, to wit, on or about the 11th day of July, 1901, plaintiff and defendant entered into a contract whereby plaintiff agreed to sell, deliver, and erect for defendant one 80-ton 40' Fairbanks Standard iron frame railroad track scale, with all latest patented improvements, at and for the sum and price of four hundred and thirty-three dollars ($433), which said amount defendant promised and agreed to pay to plaintiff one-third in cash upon the erection of said scales, and the balance in ninety days thereafter, which said contract and agreement is in words and figures as follows:

                               "`St. Louis, Mo., July 11, '01
                  "`Midvale Mining & Mfg. Co
                      "`No. 401 Security Bldg., City
                

"`Gentlemen: We are pleased to quote you as follows: 80 ton 40' Fairbanks Standard Iron Frame Railroad Track Scale, with all our latest patented improvements, $433.00.

"`These prices are f. o. b. East St. Louis, and we will furnish, free of charge, an expert scale builder to frame the timbers and superintend erection of the scale foundation to be furnished by your company.

"`We guarantee the scale to be our best grade, durable and accurate, in fact, a perfect weighing machine, and as you doubtless appreciate the importance of having something reliable for your work, we will hope to be favored with your valued order.

                  "`Very truly yours
                            "`Fairbanks, Morse & Co.,
                                         "`By Frank Reiter.
                

"`Accepted. Terms one-third cash as soon as scale is erected, bal. in ninety days. Accepted July 11, 1901.

                      "`Midvale Mining & Mfg. Co.,
                             "`J. E. Cartwright, Prest.'
                

"Plaintiff says that in pursuance of said contract and agreement it thereafter, to wit, on or about the 1st day of August, 1901, delivered said scale at and upon the premises of the defendant, and has ever since been ready, willing, and anxious to erect said scale, but that the defendant has failed to and refused, and still refuses, to permit plaintiff so to do, and in violation of said contract and agreement has sent said scales away from said premises, and has undertaken to cancel its said contract or agreement with plaintiff. Plaintiff says that by reason of the premises above set forth defendant has become and now is indebted to the plaintiff in the sum and amount of $433, together with interest thereon from the 1st day of August, 1901, and costs of this suit, for which plaintiff prays judgment."

The answer is as follows:

"Defendant now comes, and, answering plaintiff's petition herein, says that, except as hereinafter admitted, it denies each and every allegation of said petition. Further answering, defendant says that plaintiff did not deliver or offer to deliver to defendant scales of the size, character, and dimensions described in plaintiff's petition, as required by the terms of its contract. Wherefore defendant says it is not indebted to plaintiff as charged in the petition. For a further answer defendant says: that it was distinctly understood by both plaintiff and defendant that the scales mentioned in the contract were to be used by defendant in weighing in car-load lots the incoming and outgoing freight of defendant company, and that they were to be built in and upon a railroad track leading up to defendant's manufacturing establishment, and that the erection of said scales would require a suspension of defendant's business and of all traffic upon said track while being erected. That by the terms of said contract the defendant was to furnish the lumber and material for the erection of said scales, and plaintiff to furnish an expert scale builder to frame the timber and superintend the erection thereof; and that plaintiff was to give defendant due and reasonable notice of the delivery of said scales, so that defendant could purchase and have on hand such material and lumber and could so arrange its business that said railroad track could be torn up during the time required to erect said scales, which plaintiff says would be about two weeks. That plaintiff failed to give such notice or any notice of its intention to deliver said scales. That plaintiff did not deliver or offer to deliver said scales on board cars, as required by the contract. That when plaintiff offered to deliver said scales defendant refused to accept them at the time and in the manner offered, because great loss would thereby ensue to it, and so notified plaintiff; and it was then and there agreed by and between the plaintiff and defendant that said scales should be unloaded and left on defendant's...