Graham Paper Co. v. National Newspapers Ass'n

• Decision Date: 02 April 1917
• Docket Number: No. 12324.,12324.
• Citation: 193 S.W. 1003
• Parties: GRAHAM PAPER CO. v. NATIONAL NEWSPAPERS ASS'N.
• Court: Missouri Court of Appeals

193 S.W. 1003

GRAHAM PAPER CO. v. NATIONAL NEWSPAPERS ASS'N.

No. 12324.

Kansas City Court of Appeals. Missouri.

April 2, 1917.

Appeal from Circuit Court, Jackson County; Daniel E. Bird, Judge.

"Not to be officially published."

Action by the Graham Paper Company against the National Newspapers Association. Judgment for the plaintiff for a part only of the amount claimed, and allowing defendant's counterclaim against the amount of recovery, and plaintiff appeals. Reversed and remanded, with directions to modify the judgment.

Lewis & Rice, of St. Louis, and Sebree, Conrad & Wendorff, of Kansas City, for appellant. Frank M. Lowe, of Kansas City, for respondent.

TRIMBLE, J.

Plaintiff is engaged in the business of selling paper. Defendant publishes the Kansas City Post. On April 19, 1911, plaintiff entered into a written contract to furnish defendant 3,000 tons of standard roll print paper (to be used on a Hoe three-deck sextuple press), at the price of $2.04 per hundred pounds on board cars at mill. This required defendant to pay the freight to Kansas City and the drayage at that place, and the contract so provided. Shipments were to be made in carload lots at the average rate of 250 tons per month, the first shipment to be made on or about May 1, 1911, and subsequent shipments on 30 days' notice by defendant. After plaintiff had supplied 2,537 tons, defendant canceled the contract, refused to order or take the remaining 463 tons of the 3,000 contracted for, and declined to pay for the shipments of paper made during the month of March, 1912. The controversy between the parties over said contract, and their respective claims in reference thereto, resulted in this suit, which was begun August 27, 1912.

The first count of plaintiff's third amended petition alleged that at certain specified dates between March 9 and March 20, 1912, plaintiff, upon orders from defendant, shipped 197 rolls of paper weighing in the aggregate 262,030 pounds, which, at the contract price of $2.04 per hundredweight, was worth $5,345.38, for which judgment was asked, with interest from April 30, 1912. The second count was for damages on account of loss of profits on the remaining tons which the defendant refused to order or to take. The third count was for the freight on one of the March, 1912, shipments, which plaintiff had to pay by reason of the refusal of defendant to pay same, amounting to $97.20. The fourth count was for certain items of pink news print paper, and of jute tube rope, ordered by defendant outside of and free of any connection with the contract, aggregating the sum of $919.42. The fifth count was for the value of 1,0622/12 feet of alleged unreturned iron cores, being the stems on which the rolls were wound, at 40 cents per foot, aggregating $424.97; the contract providing that if cores were not returned the vendee should pay 40 cents a foot therefor. The sixth count was on a quantum meruit for all of the items set out in the first and fifth counts, and prayed judgment therefor with interest from April 30, 1912.

Defendant, in its third amended answer, admitted the execution of the contract for the purchase of 3,000 tons of standard roll print paper, but denied every other allegation. It then set up a counterclaim for damages, alleging that the weight of the paper furnished the defendant exceeded the contract provision in regard thereto by 116,150 pounds, and that this overweight resulted in the following items of damage: $2,382.08, defendant having to pay that much more for the paper than it should have paid (though it would seem that on a basis of 116,150 pounds overweight at $2.04 per hundred-weight the true excess paid would be $2,369.46 instead of $2,382.08), $267.15 on account of additional freight and drayage made necessary by such overweight; and $525 on account of extra postage required thereby. Said counterclaim further alleged that, by reason of breakdowns and delays on account of the paper being of a poor quality and not suitable for use on the press for which it was bought, defendant was damaged in the sum of $5,000 by reason of inability to deliver its papers on time, resulting in the failure to sell many editions of the paper and the loss of thousands of subscribers; that defendant was further damaged by being compelled to refund to its country agents $588 they had paid for papers but which were useless since the papers had not been delivered in time. A third count claimed damages in the sum of $10,000 to the reputation of the newspaper on account of the inability to get the paper out on time, all caused by the poor quality of the paper and its failure to comply with the contract.

After a jury had been impaneled and sworn, the parties made their respective statements, from which the court discovered that the trial involved the examination of long, involved, and intricate accounts, the taking of much testimony, and the comparison of many record and bookkeeping entries. Thereupon, under the provisions of section 1996, R. S. Mo. 1909, the court, over plaintiff's objections, referred the case to a referee to hear the evidence and make a finding of facts. The referee held hearings and made report. On the first count of the petition he found that plaintiff furnished, and the defendant admitted having used, white paper to the value of $5,345.38. On the second count, for loss of profits on the 463 tons of paper the defendant refused to take, the finding was for defendant. On the third count, for freight defendant failed to pay, the finding was for $97.27. On the fourth count, for pink paper and jute tube rope outside of the contract, the referee found for plaintiff in the sum of $839.02. On the fifth count, for iron cores, the referee held that all cores had been returned, and found for defendant on that count. As to the matters presented by defendant's counterclaim, the referee found that defendant was damaged in the sum of $797.81 by reason of increased price on account of excess weight, and $99.66 by reason of increased freight and drayage on that account; that there was no damage accruing to defendant in other ways. The referee, therefore, reported that he found plaintiff was entitled to $6,281.67 on its petition and defendant was entitled to $897.47 on its counterclaim.

Plaintiff filed exceptions to the referee's report. Defendant filed no exceptions thereto but filed a motion to set aside the whole report and to re-refer the case. The plaintiff prayed the court to make findings of fact and state conclusions of law. Whereupon, the court overruled plaintiff's exceptions to the referee's report, set aside said report, and, on the first count of plaintiff's petition, rendered judgment for plaintiff in the sum of $5,345.38. On the second count, for loss of profits on the 463 tons not taken, judgment was rendered for defendant. On the third count, for freight, judgment was rendered for plaintiff in the sum of $97.20. On the fourth count, for pink paper and jute tubing rope, judgment was rendered for plaintiff in the sum of $919.42. On the fifth count, for iron cores, judgment was for defendant. On the sixth count, which was a repetition of the first and fifth counts, judgment was for defendant. The aggregate judgment in plaintiff's favor was $6,366.58 (though this seems to be $4.58 more than the aggregate of the judgments rendered in the three counts). No interest was allowed by the court on any of said counts.

On defendant's counterclaim the court rendered judgment in its favor on the following items: $2,382.08 on account of excess in purchase price on account of overweight (though, as stated, the excess on 116,150 pounds at $2.04 per hundredweight would seem to be $2,369.46); for $267.15 on account of increased freight and drayage paid on account of overweight; and for $525 for excess postage paid on account of said extra weight. On all other matters in the counterclaim the finding was for plaintiff. The judgments in defendant's favor on the counterclaim aggregated $3,174.23 and, after deducting same from the aggregate judgment in favor of plaintiff, left $3,192.35 for which judgment was rendered in plaintiff's favor. Thereupon plaintiff appealed.

It is conceded that the defendant obtained and used the paper and materials specified in the first and fourth counts. The contract provided that defendant was to pay the freight, and it is conceded that defendant did not pay the freight on the shipment mentioned in the third count. Consequently, there can be no question as to the correctness of the judgment in plaintiff's favor on said first, third, and fourth counts, except upon the point as to whether the court should have allowed interest on the judgments in the first and fourth counts from April 30 and August 1, 1912, respectively to the date of judgment, which will be considered later.

In the view we take of the case, the defendant was justified in refusing to take the remaining 463 tons of the 3,000 it had agreed to take. So that the court was right in rendering judgment in favor of defendant on the second count of plaintiff's petition.

According to defendant's evidence, plaintiff's branch house at Kansas City got all of the iron cores in defendant's possession which belonged to plaintiff. There was no showing to the contrary. Hence the court was right in rendering judgment for defendant on the fifth count of plaintiff's petition.

As to defendant's counterclaim, it would seem that if the paper furnished was over the contract weight, then, unless there was something in the contract or in defendant's conduct which would prevent it, defendant would be entitled to counterclaim for the excess in price caused by such excess in weight. The cause of action alleged in the counterclaim, if established by the facts, was one which existed in favor of defendant against the plaintiff between whom a several judgment could be had in the action, and arose out of the contract set forth in the petition as the...