James Maccalum Printing Co. v. Graphite Compendius Co.
| Decision Date | 12 July 1910 |
| Citation | 130 S.W. 836,150 Mo.App. 383 |
| Parties | JAMES MACCALUM PRINTING CO., Appellant, v. GRAPHITE COMPENDIUS CO., Respondent |
| Court | Missouri Court of Appeals |
Appeal from St. Louis City Circuit Court.--Hon. Jas. E. Withrow Judge.
REVERSED AND REMANDED.
A demurrer having been sustained to the following petition plaintiff stood on the petition, refused to amend further final judgment was given against him, and this appeal resulted.
"Plaintiff for amended petition states that it is and was at all the times herein mentioned a corporation organized under the laws of the State of Missouri, and engaged in the business, at the city of St. Louis, of engraving, lithographing, binding and printing all kinds of books, publications and other printed matter; that defendant is and was at all the times hereinafter mentioned, a corporation and engaged in the business of publishing what was called by it The Graphic Compendius Catalogue or American Consuls Reference List which was a publication of advertising matter for business corporations, firms and individuals, setting forth the products of manufacture and commerce manufactured, dealt in or sold by them and which advertisements in defendant's said catalogue were set up in English and a large number of foreign languages and said catalogue when so published were and are by defendant distributed all over the world for the information of intending foreign purchasers of American goods and products; that on or about the 29th day of June, 1905, plaintiff and defendant entered into a contract whereby the plaintiff agreed to print and bind for defendant the first issue of its Graphic Compendius Catalogue, consisting of thirty-one hundred and fifty copies of one hundred and fifty or more pages each, and to do the work according to specifications in said contract fully set forth; that in and by said contract it was further contracted and agreed between the parties that upon the faithful performance of said contract by plaintiff, the defendant should pay to plaintiff the sum of $ 9.60 per page for all new matter in said publication and that if the price of plaintiff was no higher than that of other responsible firms on succeeding issues of said publication gotten out by the defendant, that then the defendant would give the work of publishing such succeeding issues to plaintiff.
Plaintiff further states that thereafter during the early part of the year 1906, the defendant determined to get out a second issue or series of its said Graphic Compendius Catalogue and plaintiff's price for doing said work being no higher than that of other responsible firms therefor, the said work was awarded to plaintiff and thereupon plaintiff and defendant entered into a contract dated May 25, 1906, whereby plaintiff contracted and agreed to prepare and publish defendant's said second issue of said catalogue according to certain general specifications fully set forth in said contract and whereby defendant for said work agreed to pay plaintiff the sum of nine dollars and sixty cents per page for all new matter in said second issue or series of said catalogue; that thereupon plaintiff did the work in accordance with said contract and defendant paid plaintiff therefor.
Plaintiff further states that thereafter during the year 1908, the defendant determined to publish and issue the third series or issue of its Graphic Compendius Catalogue and in accordance with the terms of said contract between plaintiff and defendant, of June 29, 1905, defendant on or about June 17, 1908, requested of plaintiff a bid for doing said work; that thereupon in answer to said request the plaintiff, on or about the -- day of June, 1908, submitted to defendant a bid whereby plaintiff agreed to print, bind and publish for defendant the third issue or series of its said catalogue for the sum of $ 9.95 per page and in accordance with the same general specifications as for said second series; that said bid so submitted to defendant by plaintiff was no higher than the price asked of defendant by other responsible firms for doing the said work of printing, binding and publishing said third issue of series of defendant's said catalogue, but that defendant, regardless of its duty to plaintiff under and by virtue of the said contract of June 29, 1905, refused to award plaintiff the work of printing, binding and publishing the said third issue or series of said catalogue, or any part thereof, and thereupon awarded said work to the Kelbold Press, a printing and publishing concern in the city of New York, at a price much higher than that at which plaintiff offered and was willing to do said work as aforesaid, and which contract is in writing and in the possession of defendant.
Plaintiff further states that the provision in said contract of June 29, 1905, whereby plaintiff was to have the right to publish for defendant all subsequent series or issues of said catalogue, providing plaintiff's price therefor was not higher than that of other responsible firms, was a material provision of said contract and materially influenced the price at which plaintiff contracted and agreed to do the work upon the said first and second series of said catalogue and in reliance upon said provision being in said contract, plaintiff went to great expense, to-wit, seven hundred and fifty dollars, and expended time and labor to the value of two hundred and fifty dollars, in procuring types and other material and the services of competent persons in order to properly prepare and print said publications in a great number of languages and in addition thereto plaintiff, by reason of defendant's failure to comply with its said contract and award to plaintiff the work of printing, binding and publishing the said third series or issue of its said catalogue, also lost the profit, amounting to one thousand dollars, upon doing said work, which it would otherwise have made, and all to the damage of plaintiff in the sum of two thousand dollars, for which it prays judgment against defendant."
Judgment reversed and cause remanded.
Kinealy & Kinealy for appellant.
(1) Parties sui juris have the right to make any contract which is not contrary to law or public policy and it is the duty of the courts to enforce contracts and not to be hypercritical to seek excuses for abrogating them. Schubach v. MacDonald, 179 Mo. 163; Meyer v. Christopher, 176 Mo. 580; Nicholson v. Acme Cement P. Co., 122 S.W. 773; Typewriter Co. v. Realty Co., 119 S.W. 403; Angelica Jacket Co. v. Angelica, 121 Mo.App. 226; Hauck Clothing Co. v. Sharpe, 83 Mo.App. 385. (2) The provision in the contract for publishing the 1905 issue of respondent's catalogue that if the price of appellant were no higher than that of other responsible firms on succeeding issues of said publication gotten out by respondent that then respondent would give the work of publishing such succeeding issues to appellant is not void for want of mutuality. Laclede G. L. Co. v. Iron Wks., 169 Mo. 137; 21 Am. and Eng. Ency. Law, p. 928; 9 Cyc. 334; Williams v. Tiedmann, 6 Mo.App. 269; Reed v. Crane, 89 Mo.App. 670; Blount v. Connolly, 110 Mo.App. 603; Blackmore v. Boardman, 28 Mo. 420; Davis v. Petty, 147 Mo. 374; Lipscomb v. Adams, 193 Mo. 530; Montgomery v. Hundley, 205 Mo. 138; Elliott v. Delaney, 217 Mo. 14. (3) The contract is not void for uncertainty because of the use of the term "other responsible firms." 24 Am. and Eng. Ency. Law, p. 838; Arnot v. Alexander, 44 Mo. 25; Mullally v. Greenwood, 127 Mo. 138; Berthold v. St. L. Elect. Constr. Co., 165 Mo. 281; Gaunt v. Pries, 21 Mo.App. 540; Long v. Armsby Co., 43 Mo.App. 353; Machine Co. v. Hardware Co., 85 Mo.App. 175; Rhodes v. Land & Lumber Co., 105 Mo.App. 279; Typewriter Co. v. Realty Co., 119 S.W. 403. (4) Nor is the contract void because not limited to a specific number of future issues of the catalogue. Blackmore v. Boardman, 28 Mo. 420; Bruckman v. Dry Goods Co., 91 Mo.App. 454; Wiggins Ferry Co. v. Railroad, 73 Mo. 389. (5) Nor is the contract void as creating a monopoly. State ex rel. v. Associated Press, 159 Mo. 410.
Ferriss, Zumbalen & Ferriss for respondent.
(1) The alleged contract is lacking in mutuality, and is, therefore, unenforcible. Campbell v. American Handle Co., 117 Mo.App. 19; Agricultural Chemical Co. v. Kennedy, 103 Va. 171; Higbie v. Rust, 211 Ill. 333; Hoffman v. Maffiole, 104 Wis. 631; Cotton Oil Co. v. Kirk, 68 F. 791, 15 C. C. A. 540, and note on "Mutuality in Contracts;" Transportation Co. v. Bolt and Nut Co., 114 F. 77; Santaella & Co. v. Lange, 155 F. 719; Evans v. Peck-Hammond Co., 25 Ohio Circuit Court Reports 161. (2) The alleged contract is so vague, indefinite and uncertain in its terms that it is not enforcible. Lawson on Contracts, sec. 11; Burks v. Stam, 65 Mo.App. 455; Gelston v. Sigmund, 27 Md. 335; Delashmutt v. Thomas, 45 Md. 140; Evans v. Peck-Hammond Co., 25 Ohio Circuit Court Reports 161; Davie v. Mining Co., 93 Mich. 491. (3) The petition shows that the obligations, if any, imposed upon defendant by said contract have been complied with. Elderton v. Emmens, 4 C. B. 479; Perry v. Wheeler, 12 Bush (Ky.) 541; Sullivan v. Railroad (Mich.), 64 L.R.A. 673; Railroad v. Marshall, 136 U.S. 393; Jones v. Newport News & M. V. Co., 65 F. 736, 13 C. C. A. 95; Echols v. Railroad, 52 Miss. 610; Diffenderfer v. School Board, 120 Mo. 447.
GOODE, J. (after stating the facts).
The question is whether a valid contract was made between the parties by which plaintiff was entitled to be awarded the work of printing and binding defendant's issue of its catalogue for the year 1908; that is to say, the third issue of catalogues. The objections to the contract are: First, it is unilateral, therefore not binding on defendant; second, it is so vague and...
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