Harrison Wire Co. v. Hall & Willis Hardware Co.

• Decision Date: 09 February 1889
• Citation: 97 Mo. 289,10 S.W. 619
• Parties: HARRISON WIRE CO. v. HALL & WILLIS HARDWARE CO.
• Court: Missouri Supreme Court

10 S.W. 619

97 Mo. 289

HARRISON WIRE CO. v. HALL & WILLIS HARDWARE CO.

Supreme Court of Missouri.

February 9, 1889.

APPEAL — REVIEW — WEIGHT OF EVIDENCE.

A finding of the trial court that defendant is entitled to nominal damages only for breach of contract by plaintiff to sell him goods, set up as a counter claim, will not be reversed where the evidence as to whether the market price of such goods at the time in question was above or below the contract price is conflicting.

Appeal from St. Louis circuit court; AMOS M. THAYER, Judge.

Action by the Harrison Wire Company against the Hall & Willis Hardware Company. Defendant appeals. The cause was transferred from the St. Louis court of appeals.

Dyer, Lee & Ellis, for appellant. S. Hermann and Valle Reyburn, for respondent.

RAY, C. J.

The plaintiff herein is a corporation dealing in wire fencing, at St. Louis, Mo., and defendant herein is also a corporation engaged at Kansas City, Mo., in the hardware business and trade. The petition is in two counts for goods and merchandise sold and delivered by plaintiff to defendant.

As to the first count, there is no controversy; the judgment thereon in plaintiff's favor being conceded to be correct. The second count in the petition is for goods and merchandise sold and delivered by plaintiff to defendant in January, A. D. 1883, and the amount for which plaintiff obtained judgment thereon is $1,397. The answer of defendant, in addition to a general denial, sets up two distinct and separate counter-claims, in two separate counts. If we have not misapprehended the record, and the positions and claims of the parties in this court, the second counter-claim is, with respect to this appeal, wholly immaterial. As we gather the facts, the amount for which defendant claims that judgment should have been given in its favor, by way of counter-claim, arises upon and grows out of the first counter-claim exclusively. The first counter-claim is set up in the first count of the answer as follows:

"First. Defendant, for a counter-claim against the plaintiff, states that heretofore, to-wit, on the 2d day of November, 1882, the plaintiff entered into a contract, in writing, with the defendant, which is herewith filed, marked `Exhibit A,' and by which the plaintiff promised and agreed to sell and deliver to the defendant fifty car-loads of barbed fence-wire, four-point licensed wire, one-half galvanized, if desired, at six and one-half cents per pound for painted, and seven and one-half cents per pound for galvanized, price guarantied on unfilled orders, `f. o. b.' in St. Louis, to be taken by July, 1883, with the privilege of cancellation; and which contract was then and there mutually agreed to and accepted by both of the aforesaid parties. That, in accordance with the terms of said contract, the defendant did order and direct the plaintiff to ship and deliver to the defendant fifty car-loads of barbed fence-wire, as described in said contract; but the plaintiff failed, neglected, and refused to deliver said fifty cars of barbed fence-wire, as required by their contract, with the exception of one car-load; whereby defendant says that it was damaged by the non-performance of said contract of plaintiff in the sum of $3,000."

Exhibit A, referred to in this answer, is as follows:

                                                 "KANSAS CITY, Mo., November 2, 1882
                

"Harrison Wire Co., St. Louis, Mo. — GENTS: Enter our order for fifty cars barbed fence-wire, four-point licensed wire, one-half galvanized, if desired, at six and one-half cents per pound for painted, and seven and one-half cents for galvanized, price guarantied on unfilled orders, f. o. b. in St. Louis, to be taken by July, 1883, with the privilege of cancellation."

The contract, we may observe, was executed by both parties, plaintiff and defendant.

The reply of plaintiff denied generally the allegations of the counter-claims, and a second reply alleges that said Exhibit A, attached to the counter-claim, is so vague and indefinite that the minds of the parties never met, and that the terms were never fully agreed upon.

At the trial which was had before the court without the intervention of a jury, and without any declaration of law being asked by either party, the plaintiff had judgment upon both counts of his petition, as already indicated, and defendant had judgment on its said counter-claims for nominal damages.

Controversy and differences arose, it seems, between ...