Harrison v. Murray Iron Works Co.

• Decision Date: 03 November 1902
• Citation: 70 S.W. 261,96 Mo. App. 348
• Parties: HARRISON et al. v. MURRAY IRON WORKS CO.
• Court: Missouri Court of Appeals

70 S.W. 261

96 Mo. App. 348

HARRISON et al. v. MURRAY IRON WORKS CO.

Court of Appeals at Kansas City, Missouri.

November 3, 1902.

CONTRACTS — CONSTRUCTION — LIMITATION OF LIABILITY FOR BREACH — RELEASE — CONSIDERATION.

1. A contract for the erection of an ice plant, providing that after 10 days' operation, etc., plaintiffs should accept or reject the plant; that, if rejected, they should permit defendant to enter the premises, "and remove all our machinery, without charge to you, and upon refunding to you whatever money has been paid us" does not limit defendant's liability, in the event of its failure to fully perform the contract, to a return of the money received by it from plaintiffs.

2. Payment by defendant to plaintiffs of a liquidated sum unconditionally due is not a sufficient consideration to support a release executed by plaintiffs to defendant for any claim for unliquidated damages.

Appeal from circuit court, Nodaway county; Gallatin Craig, Judge.

Action by Bert J. Harrison and others against the Murray Iron Works Company. Judgment for plaintiffs, and defendant appeals. Affirmed.

The plaintiffs were, at and prior to the 16th day of March, 1901, engaged as partners in the business of putting up and retailing natural ice in the town of Maryville, Mo., and the defendant company, located at Burlington, Iowa, was engaged in the business of constructing and putting in operation machinery for the manufacture of artificial ice. On said day defendant agreed with plaintiffs to construct and put in operation an ice plant in said town of Maryville, to be completed and in operation by the 1st day of July next thereafter. This agreement was in writing, which provided that the machinery for manufacturing ice, when properly operated, would produce refrigeration equal to the melting of one ton of ice daily, continuous operation, and further agreed that with proper care the ice-freezing apparatus would produce 5 tons of clear, merchantable ice every 24 hours of continuous operation. It was a part of said contract that when said machinery was completed the defendant would furnish an engineer, who was to have charge thereof for 10 days for the purpose of testing its fitness and capacity to meet the requirement of the said agreement; and if, upon such test, it fulfilled the requirement, it should be accepted by the plaintiffs, and, if not, the plaintiffs might reject the same, and so notify defendant in writing, and permit it to enter the premises of plaintiffs on which the machines might be erected, and, upon returning to them whatever money they had paid to defendant, remove the same. It was also provided that all foundations, masonry, and carpenter's work for compressors, engine, pumps, tanks, and condensers were to be provided by the plaintiffs, and all holes for pipes to pass through wall or floors were to be made by them, and they were also to supply mains at such place in the building as designated by defendant. The plaintiffs were also to furnish the building to receive the machinery, to insure said machinery for the use of defendant, and to furnish certain labor necessary in the work. The contract has a clause for delivery f. o. b. (free on board the cars) at Burlington, Iowa, freight to be deducted from second payment to be made upon the contract. It appears that the putting in of the machinery was completed on the 15th day of July, and that, after the engineer of defendant had been operating it for more than 10 days, it proved unsatisfactory to the plaintiffs, whereupon they gave to the defendant the required written notice that they rejected it, upon which notice defendant paid to plaintiffs $3,800, and removed the machinery. The sum so paid represents $3,581.86, money paid to defendant on the contract price (which was $5,800), $216.14 paid by plaintiffs for freight of the machinery from Burlington, Iowa, to Maryville, Mo., and $2 bank exchange. It being a part of the plaintiffs' case, as shown by the petition: "That in the winter prior to the ice season for the year 1901, having in contemplation the erection of a plant for the manufacture of artificial ice, they only put up enough ice to answer for the use of their customers until the 1st of July, of which it was alleged the defendant was informed at the time of the making of said contract; that their ice gave out in July, and, as they had none to sell and deliver during the remainder of the season, they lost the usual profits on such sales, and lost their customers thereby, for all of which they ask compensation." Plaintiffs' evidence tended to show the amount they had paid out in the performance of their part of the contract for labor furnished during the progress of the work, for cost of foundation, providing mains, and other damages. The defendant relied on accord and satisfaction, and it alleged that after constructing said machinery it was ascertained that by reason of the extraordinary and unprecedented heat of the summer the water furnished by the plaintiffs was fully 20 degrees hotter than was usual or ordinary, by reason of which said water required a greater degree of refrigeration than the melting of one ton of ice per day; that the defendant offered to, and was willing to, and could have so accommodated the machinery to the actual conditions, but by the wrongful acts of plaintiffs they made the successful working of said machinery impossible; and that the plaintiffs, when they received the said sum of $3,800 knew that defendant was denying its obligations to pay said sum, and that it was paying the same in good faith as a full and complete adjustment of any right or claim that plaintiffs had or might have growing out of said agreement, or in any manner connected therewith. There was evidence tending to show that the defendant's agent offered to adjust the machinery to existing conditions, but that plaintiffs refused the offer, and insisted on rejecting it altogether.

When the defendant paid to the plaintiffs said sum of $3,800 a receipt was executed by the plaintiffs, upon a proper construction of which, in connection with what was said by the parties at the time, and the surrounding circumstances, depends the determination of the question before us. This receipt, with erasure and interlineations, is as follows:

"$3800.00. $3581.86.

"Maryville, Mo., Aug. 12th, 1901.

"Received from the Murray Iron Works Company of Burlington, Iowa, Three thousand and five hundred, eighty one, and eighty six one hundredths dollars thirty eight hundred dollars, amount paid by us to Murray Iron Works Company, and in full of all claims of any and every kind, under contract of March 16th, 1901, for ice making plant, sold to us under said contract, and we hereby surrender said contract and permit the Murray Iron Works Company to enter premises, and remove all their machinery as per contract.

                "Harrison Brothers
                "By Bert Harrison."
                

When the defendant was preparing to remove the machinery, it presented to the plaintiffs above receipt, as shown, before erasures and interlineations, at which time it read for $3,581.86, which represents the actual amount paid by the plaintiffs to the defendant on the contract. The plaintiffs signed the receipt as it then stood, but refused to deliver it until the money they had paid for freight, $216.14, and $2 for exchange, was paid them. Defendant's agent afterward paid to plaintiffs the sum of these two items, and the receipt was then changed so as to read as it now appears. The evidence disclosed the fact that the freight bill of $216.14 was deducted at the time from a payment of $2,000, made by the plaintiffs, but the $2 for exchange was not. There was some hesitancy upon the part of the defendant's agent in agreeing to pay plaintiffs the freight bill in addition to the amount actually received from plaintiffs, and he expressed a desire to hear from the defendant company before he would do so. Afterwards he stated that it was all right, and the defendant would pay it. The matter, when it was finally concluded, was in the hands of the respective attorneys of the parties. The plaintiffs' lawyer, after stating on the witness stand that the defendant, through its attorney, had agreed to allow the whole...