Handlan Buck Manufacturing Co. v. Stave Electrical Co.

• Decision Date: 31 December 1913
• Citation: 168 S.W. 785,184 Mo.App. 247
• Parties: HANDLAN BUCK MANUFACTURING COMPANY, Appellant, v. STAVE ELECTRICAL COMPANY, Respondent
• Court: Missouri Court of Appeals

168 S.W. 785

184 Mo.App. 247

HANDLAN BUCK MANUFACTURING COMPANY, Appellant, v. STAVE ELECTRICAL COMPANY, Respondent

Court of Appeals of Missouri, St. Louis

December 31, 1913

Opinon Modified and Motion for Rehearing Overruled July 2, 1914.

Appeal from St. Louis City Circuit Court.--Hon. George H. Shields Judge.

REVERSED AND REMANDED (with directions).

Judgment reversed and cause remanded.

Leahy Saunders & Barth for appellant.

(1) A party to a lawsuit is bound by the theory upon which he tries the case below. Mirrielles v. Railroad, 163 Mo. 470; McQuillin on Instructions to Juries in Missouri, Civil Cases, sec. 294. (2) In this case respondent took the position that the contract was continued at the end of six months unless it, respondent, elected to discontinue it at that time, despite the fact that the contract itself provided that it should terminate at the end of six months with an option to appellant to renew, provided appellant had sold one hundred and fifty lamps during the said six months, the proof being that it had not sold one. (3) There is no evidence in the record that the contract was renewed at the end of six months. (4) The written and undisputed evidence shows that appellant tendered back to respondent all the lamps in its possession and offered to pay the freight both ways, and respondent declined to accept this tender. (5) Both parties took the position that under the contract appellant had the right to tender back the original twelve lamps shipped to it, and to recover back the purchase price, but respondent insisted that such tender must be made within a reasonable time after February 5, 1910, the date of the termination of the contract. Since both parties concede that appellant had the right to return the twelve lamps under the contract, and demand back the purchase price, the contract requires no construction on that point. Where both parties have construed a contract, the court will generally adopt the construction so given it. Rose v. Carbonating Co., 60 Mo.App. 28; Williams v. Railroad, 85 Mo.App. 103. In the instant case both parties took the position that appellant had the right to tender back the twelve lamps originally shipped to it, upon prepayment of the freight both ways. (6) Instructions given for respondent, and the modifications by the court of appellant's instructions, are all erroneous, because practically all of them declared to the jury that respondent had the right to discontinue the contract at the end of the first six months, and ignored the automatic termination thereof under its express terms. Furthermore, the court undertook, in instruction number 20, to submit to the jury the construction of the contract, having first declared, in instructions numbers 18 and 19 for defendant, its alleged meaning, and again, in instruction number 21, assumed the fact that plaintiff refused to return to defendant the consigned lamps and then undertook, in the same instruction, to submit to the jury the question whether plaintiff had so refused. The instructions in this case are contradictory, confusing and misleading and wholly unsupported, either by the contract or the record. The court converted an experimental agency contract into an absolute purchase by appellant from respondent of twelve lamps consigned for agency purposes, and of twenty more lamps with equipment consigned to appellant at Denver for exhibition purposes at the American Street & Interurban Railway Manufacturing Association convention. (7) It was the duty of the court to construe the written contract. Brannock v. Elmore, 114 Mo. 55. The construction of the contract given in instructions numbers 18 and 19 was incorrect, and under no circumstances did the court have the right to submit to the jury the meaning of this contract. McQuillin on Instructions to Juries in Missouri, Civil Cases, sec. 60. (8) An instruction referring the jury to the pleadings to find the issues is erroneous, especially where part of the allegations are not supported by any evidence. Remmler v. Shenault, 15 Mo.App. 192; Grant v. Railroad, 25 Mo.App. 227. Instruction number 20 not only imposes upon the jury the duty of construing the contract, but also referred the jury to defendant's counterclaim to ascertain the construction. (9) It is the general rule that all terms in instructions and all phrases which the jury would not ordinarily understand must be defined, as, for instance, "negligence," "reasonable care," "due diligence," "probable cause," "malice," etc. Applying this to instructions numbers 18 and 19 it will be seen that both instructions required the return of the lamps "within a reasonable time" after February 5, 1910. Neither instruction defined the rule governing the ascertainment of a reasonable time. This was necessary, as the following cases will show: Schwab v. Union Line, 13 Mo.App. 159; Skeen v. Springfield Eng. & Thresher Co., 34 Mo.App. 485; Heating & Plumbing Co. v. Oviatt, 60 Mo.App. 565; Joseph v. Andrews Co., 72 Mo.App. 551; Sloop v. Railroad, 93 Mo.App. 605.

Brownrigg & Mason for respondent.

ALLEN, J. Reynolds, P. J., and Nortoni, J., concur.

OPINION

ALLEN, J.

This is an action to recover money paid by plaintiff to defendant for certain lamps, under and by virtue of a contract between the parties. Defendant denied liability for the return of the money so paid it, and interposed a counterclaim for the value of certain other lamps that it had shipped upon plaintiff's order. There was judgment for defendant, both on plaintiff's cause of action and on defendant's counterclaim, and plaintiff prosecutes this appeal.

On August 5, 1909, a contract was entered into between the parties, both of them being corporations, wherein defendant, Stave Electrical Company, is designated as the party of the first part, and the plaintiff, Handlan-Buck Manufacturing Company, as the party of the second part. The contract, omitting unessential verbiage, is as follows:

"Whereas the party of the first part is the owner of United States rights in certain are lamps known as 'Flaming' and 'Miniature' arc lamps:

"Now, in consideration of the execution of this contract, the performance of the agreements hereinafter recited and the receipt of one dollar in hand paid to the party of the first part by the party of the second part, receipt whereof is hereby acknowledged, the party of the first part hereby grants and gives unto the party of the second part the exclusive right of the sale of arc lamps hereinafter mentioned, throughout . . . [a designated territory] for a period of six months from date of this contract with the privilege of the party of the second part to renew this contract for a further period of six months, provided that the sales in the first period of six months amount to one hundred and fifty lamps, and to again renew this contract for a further period of six months provided the sales in the second period amount to two hundred lamps.

"It is further agreed between the parties hereto that the party of the first part shall sell and deliver to the party of the second part, or to such customers which the party of the second part may determine, two types of 'Flaming' arc lamps, . . . the former to sell at the list price of fifty-five dollars per lamp, the latter for the list price of sixty-five dollars per lamp. . . . All these prices are subject to a discount of twenty per cent and ten per cent to party of the second part delivered f. o. b. St. Louis, Missouri.

"It is furthermore agreed that the parties of the second part shall be actively represented, and immediately establish subagencies throughout the territory controlled by them.

"It is further agreed that the party of the second part will upon execution of this contract immediately order twelve lamps in all of the different types and sizes as per order given under even date, and that payment for said lamps shall be made within thirty days from date of shipment, and that all payments for future orders shall be made within thirty days.

"It is further agreed that the party of the first part will from time to time ship lamps on consignment for approval orders, as requested by the party of the second part, and to be shipped to them or to such customers as the party of the second part may designate, but the number of such lamps on consignment shall not exceed forty.

"The party of the first part agrees to furnish free of charge to the party of the second part stationery, advertising matter, circulars, pamphlets, in order to facilitate sales, and further agrees to mention the party of the second part in all their general advertising and refer to them as a local branch of the Stave Electrical Company. . . .

"It is also further understood and agreed that should the party of the first part at the expiration of first term of contract decide to discontinue same the party of the first part agrees to take back such lamps and parts as party of the second part may have on hand, provided the party of the second part pays the freight both ways.

"The party of the first part reserves to itself the right to consummate any deal with profits to the party of the second part. . . . In the event of the party of the second part making sales in territory other than their own, said second party hereby agrees to hand one-third of the gross profits to the organization controlling such territory, but in the event of such territory not being controlled by any agent, the party of the second part is privileged to make the sale as if such territory were part of this agreement.

"It is further agreed that the party of the second part shall not sell, assign or transfer this contract and its rights thereunder without the consent of the party of the first part, and that they shall be actively engaged...