Globe Automatic Sprinkler Co. v. Laclede Packing Co.
| Decision Date | 05 May 1936 |
| Docket Number | No. 23568.,23568. |
| Citation | 93 S.W.2d 1053 |
| Parties | GLOBE AUTOMATIC SPRINKLER CO. v. LACLEDE PACKING CO. |
| Court | Missouri Court of Appeals |
Appeal from St. Louis Circuit Court; Chas B. Williams, Judge.
"Not to be published in State Reports."
Action by the Globe Automatic Sprinkler Company against the Laclede Packing Company. From a judgment for defendant, plaintiff appeals.
Reversed and remanded.
T. M. Pierce, Samuel H. Liberman, and E. T. & E. H. Miller, all of St. Louis, for appellant.
Fordyce, White, Mayne & Williams and Raymond E. LaDriere, all of St. Louis, for respondent.
BENNICK, Commissioner.
This is an action to recover certain interest and attorney's fees alleged to be due plaintiff under a written contract assumed by defendant. Tried to a jury, a verdict was returned in favor of defendant, and plaintiff's appeal to this court has followed in the usual course.
Plaintiff is the Globe Automatic Sprinkler Company, a corporation engaged in the manufacture, sale, and installation of automatic sprinkler and fire extinguishing apparatus.
On June 19, 1926, plaintiff entered into a written contract with Gerst Brothers Packing Company for the installation of one of its sprinkler systems in the latter's premises at 3823 Lucky street in the city of St. Louis. The contract recites that the price agreed to be paid by Gerst Brothers Packing Company for the system was the sum of $12,400, and there seems to be no dispute about the correctness of that figure; the controversy going instead to the question of whether the contract called for the payment of interest on deferred payments on the principal sum due.
The contract appears to have been embodied in one of plaintiff's printed forms, containing, along with other matters, some sixteen separately numbered provisions, the twelfth of which had to do with the subject of the price and terms of payment for the work covered by the contract. Such provision as originally written into the body of the contract stated the price to be the sum of $12,400, payable in monthly installments on the fifth day of each month in the sum of 85 per cent. of the price of the materials delivered and the work performed in the month immediately preceding, and with the balance due within thirty days after the work was subsequently completed, or, if accepted prior thereto, then upon its acceptance.
All the evidence, whether from plaintiff's or defendant's side of the case, shows that payments were not made in accordance with such original provision of the contract, which, inasmuch as it declared the whole price of the work to be due from and payable by the vendee upon the completion or acceptance of the work, had had no occasion to provide for the payment of interest on any deferred payments, and we mention the fact of the difference between the terms of the original contract and the mode of payment actually followed only to show that at some time subsequent to the initial preparation of the contract this provision of it must undoubtedly have been changed or altered so as to have permitted the making of payments by installments.
As the contract was introduced in evidence by plaintiff, it showed that attached to its margin so as to cover and be superimposed upon the first portion of the twelfth clause of the contract heretofore referred to, there was a typewritten rider which provided as follows:
Plaintiff founds its cause of action upon the language of the rider providing for the payment of interest at the rate of 6 per cent. for a period of five years, and issue is joined in the case purely upon the question of fact as to whether such rider was a part of the contract when it was executed. If it was, then plaintiff should recover in this action; but if not, then the verdict for defendant was properly returned.
It appears that in February, 1927, the Gerst Brothers Packing Company paid plaintiff the sum of $2,000, which, incidentally, was the very sum provided by the above rider to be due from the vendee upon the arrival of the material. It was expressly admitted by counsel for defendant during the trial of the case that apart from the rider there was no provision in the contract for the making of any such payment.
Following the failure of Gerst Brothers Packing Company to pay the installment of principal due in February, 1928, the sprinkler system was disconnected by plaintiff. Thereafter the defendant herein Laclede Packing Company, purchased the property from Gerst Brothers Packing Company, and after certain negotiations with plaintiff relative to reconnecting the system, entered into a written agreement with plaintiff for the assumption of all the obligations of Gerst Brothers Packing Company under its contract with plaintiff. The sprinkler system was thereupon connected up and put in operation by plaintiff in May, 1928, upon the payment to it by defendant of the sum of $2,300, which under plaintiff's version of the facts, consisted of the principal payment of $2,080 due for the year 1928 under the rider in question, together with the sum of $220 in interest. Defendant's evidence was that it did not know that it was paying any sum as interest, but that it simply received a bill from plaintiff for the gross amount of $2,300, which it paid without question, assuming the figure to have been correct.
In fact, it appears that all subsequent payments were likewise made by defendant in mere reliance upon the accuracy of plaintiff's statements of what was due from time to time and without any recourse on defendant's part to the contract of Gerst Brothers Packing Company. Upon its assumption of the liability of Gerst Brothers Packing Company, defendant had been sent a duplicate copy of the contract but had apparently lost or mislaid it, nor could the original copy of the contract left in the safe of Gerst Brothers Packing Company be accounted for. A further copy of the contract was sent by plaintiff to defendant's counsel at his request after the present controversy over the payment of interest arose.
After its assumption of the contract, defendant paid plaintiff the successive 1929, 1930, 1931, and 1932 installments of $2,080 each. Meanwhile the controversy over interest had arisen in the late summer of 1931, the amount of interest due, if any, being the sum of $1,688.40, with allowance made for the payment by defendant of $220 as interest in May, 1928.
As we have already pointed out, plaintiff based its cause of action upon the fact of the execution of the contract between it and Gerst Brothers Packing Company, with such contract containing the rider in question calling for the payment of interest; the subsequent assumption of the contract by the defendant herein; and the latter's failure and refusal to have made the interest payments due.
In its answer, while in effect admitting the execution of a contract between plaintiff and Gerst Brothers Packing Company, defendant made a verified denial that any contract was executed between plaintiff and Gerst Brothers Packing Company providing for the payment of any interest; that defendant had entered into any agreement with plaintiff by which it assumed the payment of any interest; or that any payments of interest were due from defendant to plaintiff.
The reply filed by plaintiff was in the conventional form of a general denial.
So it is apparent, just as defendant itself emphasizes in the very first sentence of its printed argument, that "the only question in this case was whether interest was provided by the terms of the original contract, or, in other words, whether the rider was part of the contract when it was executed." Defendant suggests that the verdict of the...
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