Fairbanks, Morse & Co. v. Midvale Mining & Manufacturing Co.

• Citation: 80 S.W. 13,105 Mo.App. 644
• Parties: FAIRBANKS, MORSE & COMPANY, Respondent, v. MIDVALE MINING & MANUFACTURING COMPANY, Appellant
• Decision Date: 29 March 1904
• Court: Court of Appeal of Missouri (US)

80 S.W. 13

105 Mo.App. 644

FAIRBANKS, MORSE & COMPANY, Respondent, v. MIDVALE MINING & MANUFACTURING COMPANY, Appellant

Court of Appeals of Missouri, St. Louis

March 29, 1904

Appeal from St. Louis City Circuit Court.--Hon. John A. Blevins Judge.

Judgment affirmed.

Thos A. Russell for appellant.

(1) The trial court should have sustained the objection of defendant to the introduction of any testimony. Failing to do this, the court should have given the instruction in the nature of a demurrer to the evidence at the end of plaintiff's case. (a) Plaintiff on its part complied with all the terms of the contract sued on. Weber v. Ins. Co., 5 Mo.App. 51; Parks v. Heman, 7 Mo.App. 18; McNees v. Ins Co., 61 Mo.App. 335. (b) The delivery of scale f. o. b. East St. Louis, was a condition precedent to recovery, and plaintiff must allege in its petition that it performed this condition of the contract on its part. Bayse v. Ambrose, 32 Mo. 484; Denny v. Kile, 16 Mo. 450; Turner v. Mellier, 59 Mo. 535; Larrimore v. Tyler, 88 Mo. 661; Roy v. Botelor, 40 Mo.App. 222; Price v. P. & F. Co., 77 Mo.App. 240; Lumber Co. v. Lumber Co., 89 Mo.App. 144; R. S. 1899, sec. 634. Every fact which plaintiff must prove to maintain its suit is constitutive and must be alleged. Pier v. Heinrichhoffin, 52 Mo. 333; Sidway v. Mo. Stock Co., 163 Mo. 375; Harrison v. Kansas City, 50 Mo.App. 336. (c) The contract required the scale to be delivered f. o. b. East St. Louis, and the petition alleges "plaintiff delivered said scale at and upon the premises of defendant," thereby negativing the fact that it delivered the scales as the contract requires. If this contract was modified so that the vendor could deliver the scale upon the defendant's premises such change should have been pleaded, and failing to do so, no evidence of such modification was admissible. Wilson v. Russeler, etc., 91 Mo.App. 280; Halpin v. School District, 54 Mo.App. 375. (d) The plaintiff contracted to furnish, free of charge, an expert scale builder to frame timbers and superintend erection of scale. The petition fails to allege that plaintiff furnished or offered to furnish an expert to do this work. (e) The contract provides: "We guarantee the scale to be our best grade, durable and accurate, in fact, a perfect weighing machine." There is no allegation that plaintiff delivered or offered to deliver a scale of that character. Fruit Co. v. McKinney, 65 Mo.App. 220; Silberman v. Clark, 96 N.Y. 522. (2) Both the pleading and evidence demonstrate that plaintiff is not entitled to recover. In order to recover for a breach of contract, plaintiff must aver and prove performance on its part. Billups v. Daggs, 38 Mo.App. 367; Fuchs v. St. Louis, 133 Mo. 197.

Jones, Jones & Hocker for respondent.

(1) There was abundant evidence to support the findings of fact made by the court; in fact, the appellant does not contend that the findings of fact made by the court are unsupported by the evidence. This court will therefore assume the facts to be as found by the lower court in passing upon the points involved. Nichols v. Carter, 49 Mo.App. 405. (2) Appellant's first point is that the pleadings and evidence show that the plaintiff did not comply with the written contract sued on, and that it did not allege and show that the scales were delivered f. o. b. East St. Louis, as the contract required. We take issue with the appellant in assuming that the contract required the scales to be delivered f. o. b. East St. Louis. Lumber Co. v. Railroad, 54 Neb. 325; Company v. Coal & Coke Company, 101 Ala. 481; Fruit Co. v. McKinney, 65 Mo.App. 220. (3) Appellant next contends that plaintiff did not offer defendant a scale of the best grade, a durable and a perfect weighing machine as it guaranteed. If the plaintiff failed to live up to its warranty the burden was on the defendant to show that fact. Branson v. Turner, 77 Mo. 495.

BLAND, P. J. Reyburn and Goode, JJ., concur.

OPINION

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 hereto-fore, to-wit, on or about the eleventh 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 patent 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 patent improvements, $ 433.

"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.

"Yours very truly,

"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 first 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 first 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 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 timbers and superintend the erection thereof, and that plaintiff was to give the 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 tracks 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 premises subject to plaintiff's order until such time as defendant could be ready to accept and have the same erected, and, in accordance with such agreement, they were so unloaded and left in defendant's charge.

"That, notwithstanding such agreement, plaintiff thereafter and before defendant was ready to accept and erect said scales, demanded payment therefor and threatened suit against defendant in the event of its failure to make such payment, and that thereupon defendant notified plaintiff it would remove the same from its premises, and, upon plaintiff's insisting upon payment, accordingly did so and sent them to plaintiff.

"Defendant says that by reason of the premises it is not indebted to plaintiff in any sum whatever, and it prays for its costs herein laid out and expended."

The plaintiff replied as follows:

"Now at this day comes the plaintiff, and, for reply to defendant's answer filed herein, denies all of the new matter in said answer contained, except plaintiff admits that, under the contract sued on, defendant was to furnish the timber for the erection of said scales and that plaintiff was to furnish an expert scale builder to...