Great Eastern Oil Co. v. DeMert & Dougherty

• Decision Date: 01 December 1942
• Docket Number: 38107
• Citation: 166 S.W.2d 490,350 Mo. 535
• Parties: Great Eastern Oil Company, a Corporation, v. DeMert & Dougherty, Inc., a Corporation, Appellant
• Court: Missouri Supreme Court

166 S.W.2d 490

350 Mo. 535

Great Eastern Oil Company, a Corporation, v. DeMert & Dougherty, Inc., a Corporation, Appellant

No. 38107

Supreme Court of Missouri

December 1, 1942

Rehearing Denied December 15, 1942.

Appeal from Circuit Court of City of St. Louis; Hon. F. E Williams, Judge.

Affirmed.

Jones Hocker, Gladney & Grand and Vincent L. Boisaubin for appellant.

(1) A contract which requires the seller to furnish an indefinite quantity, and which does not require the buyer to purchase any definite quantity, and which contains no other promise by the buyer, lacks mutuality and is void for want of consideration. Hudson v. Browning, 264 Mo. 58; Gillen v. Bayfield, 329 Mo. 681; Campbell v. American Handle Co., 117 Mo.App. 19; Saginaw v. Dykes, 210 Mo.App. 399; Jennings, Inc., v. Hirsch Rolling Mills Co., 242 S.W. 1003; Malloy v. Egyptian Tie & Timber Co., 212 Mo.App. 429; Cherry v. Chorn, 221 Mo.App. 1207. (2) A modification of a contract is itself a contract and must be supported by a new consideration. There must be promises by each party, and the obligations of both parties must be affected. Wilt v. Hammond, 179 Mo.App. 406; Mount Vernon Car Mfg. Co. v. Hirsch Rolling Mills Co., 285 Mo. 669. (3) In a contract between a producer and a "jobber," where the amount "required" by the jobber is dependent upon the indefinite factors of future sales by the jobber and future market price, and is not to be determined by reference to a past experience of the incidental use of the commodity in connection with an established business of the vendee, there is no dennite amount to which the vendee can be held to have agreed to purchase and he is a mere tentative vendee, and the contract, therefore, lacks mutuality and is void. Brown Paper Box Co. v. King-Brinsmade Mercantile Co., 190 Mo.App. 584; Crane v. Crane & Co., 105 F. 869; Cold Blast Transp. Co. v. Kansas City Bolt & Nut. Co., 114 F. 77; Schlegel Mfg. Co. v. Cooper's Glue Factory, 231 N.Y. 459, 132 N.E. 148; American Cotton Oil Co. v. Kirk, 68 F. 791. (4) Evidence of the price paid in purchases from others by a vendee who claims a breach of contract is incompetent to establish market value. 55 C. J., "Sales," sec. 1133, p. 1143; Scullin Steel Co. v. Mississippi Valley Iron Co., 308 Mo. 453; Cobb v. Whitsett, 51 Mo.App. 146; Nugent v. Armour Packing Co., 208 Mo. 480; Fairchild-Gilmore-Wilton Co. v. Southern Ref. Co., 110 P. 951; Strohmeyer & Arpe Co. v. Hartley Silk Mfg. Co., 114 N.Y.S. 287; Thedford v. Herbert, 119 N.Y.S. 1025. (5) The market value must be established as of the date of the alleged breach. 55 C. J., "Sales," sec. 1150, p. 1161. (6) Where a contract involves a purchase at wholesale the wholesale market price, and not the retail price, is to be considered. 55 C. J., "Sales," sec. 1150, p. 1161; Richter v. Clark, 60 A. 741. (7) Isolated instances of sales do not establish market value. 38 C. J., "Market," sec. 16 (b), p. 1261; McGilvra v. Minn., etc., R. Co., 159 N.W. 854. (8) A party claiming damages for breach of contract must use reasonable diligence to mitigate the damages. Creve Coeur Lake Ice Co. v. Tamm, 90 Mo.App. 189; Lokey v. Rudy-Patrick Seed Co., 285 S.W. 1028; Sentney Wholesale Grocery Co. v. Thompson, 216 S.W. 780.

Joseph L. Simpson, Anderson, Gilbert, Wolfort, Allen & Bierman and Rassieur, Long & Yawitz for respondent.

(1) The appellant, having by its pleadings, by the opening statement of its counsel, by the testimony of its witnesses, and by its instructions to the jury, recognized the validity of the contract in suit and, having based its defenses to the contract on the terms and conditions contained therein cannot now, on appeal to this court, change theories and for the first time question the validity of the contract, on which it relied below. Nelson v. Massman Const. Co., 91 S.W.2d 623, 231 Mo.App. 1; Haskins v. City of De Soto, 35 S.W.2d 964, 226 Mo.App. 840; Wood v. Utter, 77 S.W.2d 832, 229 Mo.App. 309; Shelby v. Conn. Fire Ins. Co. of Hartford, 262 S.W. 686, 218 Mo.App. 84; Buxton v. Kroeger, 117 S.W. 1147, 210 Mo. 224; King v. Metropolitan Life Ins. Co., 211 S.W. 721; Wessel, Duval & Co. v. Crozet Cooperage Co., 130 S.E. 393, 143 Va. 469; Frank v. Myers, 109 S.W.2d 54, 232 Mo.App. 681; St. Louis v. Wright Contracting Co., 210 Mo. 491, 109 S.W. 6; Meyer Bros. Drug Co. v. Byhee, 179 Mo. 354, 78 S.W. 579; Minton v. Steele, 125 Mo. 181, 28 S.W. 746; Walker v. Owen, 79 Mo. 563; Benz v. Powell, 93 S.W.2d 877, 338 Mo. 1032; Snyder v. American Car & Foundry Co., 14 S.W.2d 603, 322 Mo. 147; Moffett v. Butler Mfg. Co., 46 S.W.2d 869; Hiatt Inv. Co. v. Buehler, 16 S.W.2d 219, 225 Mo.App. 151; Duffley v. McCaskey, 134 S.W.2d 62, 345 Mo. 550; Adrian v. Republic Finance Corp., 286 S.W. 95; Flint v. Sebastian, 300 S.W. 798, 317 Mo. 1344; Woods v. Washington Fidelity Natl. Ins. Co., 113 S.W.2d 121; Purvis v. Hardin, 122 S.W.2d 936; General Service Corp. v. Allhoff Bros., Inc., 139 S.W.2d 1062; Sinclair Refining Co. v. Wyatt, 149 S.W.2d 353, 347 Mo. 862; McConnon & Co. v. Kuhlmann, 278 S.W. 822, 220 Mo.App. 821. (2) Defendant's general denial, coupled with its defenses confessing the contract and relying on its terms for the alleged avoidance thereof, constitutes a recognition of validity of the contract by the pleadings. Cowell v. Employers' Indemnity Corp., 34 S.W.2d 705, 326 Mo. 1103; Babcock v. Rieger, 58 S.W.2d 722, 332 Mo. 528; State ex inf. Hadley v. Delmar Jockey Club, 98 S.W. 539, 200 Mo. 34; Darrett v. Donnelly, 38 Mo. 492; Brown v. Emerson, 134 S.W. 1108, 155 Mo.App. 453; Caldwell v. City of New York Ins. Co., 245 S.W. 602; Bushnell v. Farmers Mut. Ins. Co., 91 Mo.App. 523, 85 S.W. 103; State ex rel. Boatmen's Bank v. Sewer District, 327 Mo. 594, 37 S.W.2d 905. (3) The defendant having made no objection to the introduction of the contract in evidence, nor having pleaded any infirmity therein, and having admitted its validity in its opening statement, cannot now object to its validity. Wright v. Cobb, 229 S.W. 171; Laughlin v. Laughlin, 232 S.W. 114; Garrett v. Limes, 209 S.W. 295; Western v. Flanagan, 20 S.W. 531, 120 Mo. 61; Schanbacher v. Lucido Bros. Grocery Co., 93 S.W.2d 1076; Green v. Mo. Pac. Railroad Co., 82 Mo. 653. (4) The contract in suit was a printed form, prepared by the appellant, and the blanks therein were filled in by the appellant, and any ambiguities which the appellant now claims in the contract were cured by the appellant's own contemporaneous letter accompanying the executed contract at the time it delivered the contract to the buyer -- the seller is estopped from denying the construction so placed upon the contract by its own contemporaneous letter written at a time when the contract was first put into effect and when there was no controversy or litigation between the parties. Interior Linseed Oil Co. v. Becker-Moore Paint Co., 202 S.W. 566, 273 Mo. 433; Strauss Saddling Co. v. Kingman & Co., 42 Mo.App. 208; Laclede Const. Co. v. Moss Tie Co., 185 Mo. 25, 84 S.W. 76; Missouri Service Co. v. City of Stanberry, 108 S.W.2d 25, 341 Mo. 500; Hoffman v. Mastin, 119 S.W.2d 1027; McFarland v. Gillioz, 37 S.W.2d 911, 327 Mo. 690; Thomas v. Utilities Bldg. Corp., 74 S.W.2d 578, 335 Mo. 900; First Natl. Bank v. West End Bank, 129 S.W.2d 879, 344 Mo. 834; Ward v. Kurn, 132 S.W.2d 245, 234 Mo.App. 241; Clayton v. Wells, 26 S.W.2d 969, 324 Mo. 1176; 17 C. J. S., Contracts, secs. 324, 325. (5) Where a contract is a printed form prepared by the seller, as here, and filled out by the seller's agent, as here, it is most strongly construed against the seller. Interior Linseed Oil Co. v. Becker-Moore Paint Co., 202 S.W. 566, 273 Mo. 433; Buhler Mill & Elevator Co. v. Jolly, 261 S.W. 353, 217 Mo.App. 240; John Deere Plow Co. v. Cooper, 230 Mo.App. 167, 91 S.W.2d 145. (6) Moreover, the court will try to give such an interpretation to the contract as tends to uphold it rather than one which tends to defeat it. Evans v. Swetman, 235 S.W. 502; Kansas City to use v. New Amsterdam Casualty Co., 269 S.W. 693, 219 Mo.App. 283; Big Muddy Coal & Iron Co. v. St. Louis-Carterville Coal Co., 158 S.W. 420, 176 Mo.App. 407; Bridge v. Welda State Bank, 292 S.W. 1079, 222 Mo.App. 586; Paisley v. Lucas, 143 S.W.2d 262, 346 Mo. 827; National Refining Co. v. Cox, 57 S.W.2d 778, 227 Mo.App. 778; 13 C. J., Contracts, sec. 516, p. 545; Counts v. Medley, 163 Mo.App. 546, 146 S.W. 465. (7) Besides, there is no ambiguity in this contract, where drums contain 53 gallons and the purchase calls for "() drums, maximum of 35,000 gallons." Interior Linseed Oil Co. v. Becker-Moore Paint Co., 202 S.W. 566, 273 Mo. 433; Riddle v. Castner, 209 S.W. 127, 202 Mo.App. 584. (8) Appellant, having invited the introduction of and having made no objection to the introduction of three invoices showing what the Great Eastern Oil Company paid for alcohol purchased to cover some of its commitments, cannot now object. These invoices were not offered for the purpose of proving market price of alcohol. Rentner, Klaus & Co. v. Nelson, Chesem & Co., 9 S.W.2d 655; Dobson v. Otis Elevator Co., 26 S.W.2d 942, 324 Mo. 147; Campbell v. Campbell, 20 S.W.2d 655, 323 Mo. 1149; State ex rel. St. Louis Bridge & Terminal Rys. Co. v. Haid, 29 S.W.2d 714, 325 Mo. 532; Whittington v. West Port Hotel Operating Co., 33 S.W.2d 963, 326 Mo. 1117. (9) Furthermore, defendant waived objections, even if it had any, to these exhibits, because it permitted, without objection, the introduction of similar invoices showing sales by the defendant from January 7th on at 45.4c per gallon. The measure of damages for the breach of contract is the difference between the market price of alcohol in St. Louis on January 9, 1932, and the contract price thereof -- and the purchaser did not have to buy any alcohol as a condition precedent to its...