Laclede Construction Co. v. Tudor Iron Works

• Decision Date: 18 June 1902
• Citation: 69 S.W. 384,169 Mo. 137
• Parties: LACLEDE CONSTRUCTION CO. v. TUDOR IRON WORKS.
• Court: Missouri Supreme Court

69 S.W. 384

169 Mo. 137

LACLEDE CONSTRUCTION CO. v. TUDOR IRON WORKS.

Supreme Court of Missouri, Division No. 1.

June 18, 1902.

CONTRACTS — MUTUALITY — ENFORCEMENT — CONDITIONS — PRECEDENT — ENTIRE AND SEVERABLE CONTRACTS — ACTION — PLEADINGS.

1. The effect of letters between parties to a contract, to cure a defect in the contract, may be considered in an action thereon, though the petition is based on the original contract, if such letters are received in evidence without the objection of variance being made.

2. A contract requiring a seller to furnish a certain quantity of track fastenings, on the order of the purchaser, during a certain time, and providing that it is only binding for such portion thereof as the purchaser may use, even if construed as void for want of mutuality, is rendered mutually binding by a letter to the seller from the purchaser directing the delivery of all the goods designated, and an answer that the order cannot be filled before a certain date.

3. A contract requiring one party to sell and deliver a certain quantity of track fastenings

on the order of the purchaser during a certain time at a certain price, but providing that it shall only be binding as to so much of the fastenings as the purchaser shall use in connection with rails which he shall buy or lay up during the specified time, is not void for want of mutuality.

4. A person contracting to purchase a certain quantity of track fastenings during a certain time, the contract containing a stipulation that it is only binding as to the fastenings used in connection with rails of a certain weight which the purchaser may buy or lay up during the life of the contract, cannot recover for a failure to deliver the entire quantity, unless he shows that he purchased or laid up sufficient rails of some size to require the designated quantity of fastenings, even though the weight of the rails mentioned in the contract be regarded as words to measure the quantity of fastenings, and not to require that they be used with rails of the designated weight.

5. Where a petition for the violation of a contract to furnish track fastenings sufficient to lay a certain quantity of rails of a certain weight alleges that the purchaser laid the designated quantity of such rails, when he in fact did not, but laid other rails not of the designated weight, a recovery cannot be had on the theory that the designation of the rails was only a means of measurement of the fastenings to be furnished, and required defendant to furnish such a quantity of fastenings, to be used with any sized rails.

6. Where the petition in an action on a contract is not drawn on the theory that the contract is severable, the plaintiff cannot disregard an invalid portion of the contract, and recover under the remaining provisions, on the theory that the contract is severable.

7. A contract for the sale and delivery of track fastenings is not severable because it requires a sufficient quantity of one kind of fastenings to lay 300 miles of track, and only enough of another kind to lay 100 miles, even though the purchaser has made other arrangements for an additional quantity of the latter fastenings to lay the other 200 miles.

Appeal from St. Louis circuit court; Franklin Ferris, Judge.

Action on contract by the Laclede Construction Company against the Tudor Iron Works. From a judgment for defendant, plaintiff appeals. Affirmed.

This is an action to recover $62,402, damages alleged to have been suffered by reason of an alleged breach of contract by the defendant. The contract pleaded in the petition is as follows:

"St. Louis, Dec. 9, 1898. Wm. E. Guy, Esq., Pres. Laclede Construction Co., St. Louis. — Dear Sir: We purpose to furnish your company sufficient track fastenings for 39,000 tons 75lb. rails, as follows:

                Track spikes, 5 ½ × 9/16....  $1.48 per 100 lbs
                Track bolts, 7/8 and ¾
                  with U. S. nuts........................  $1.69  "   "   "
                Angle splices, sufficient for
                  100 miles of 75 lb. rail...............  $1.05  "   "   "
                

— All f. o. b. cars Madison, Ill., less allowance of 5 cts. for freight to Pekin or elsewhere on your line. Terms: Cash on the 20th of the month following delivery. Deliveries as wanted during 1899, in car lots; all to be of first-class material and workmanship. Bolts to be of especially good fibrous iron, with high tensile strength. All subject to inspection. It is the intention of this contract to supply fastenings for such rails as you may buy or lay up to this amount, and it is binding only to that extent. We will furnish you fastenings also for repairs and for new sidings at the above prices in car lots; less than car lots at 5 cts. advance, excepting splices, on which special prices for less than car lots will be made according to the quantity. Your acceptance of the above on this sheet and duplicate will complete the contract between us. Yours truly, B. S. Adams, Sec.

"Accepted: Laclede Construction Co., by Wm. E. Guy, Prest."

The petition then contains the following further material averments:

"Plaintiff further states that it required 1,980,000 pounds of track spikes 5½ × 9/16, and 412,000 pounds of track bolts 7/8 and ¾, with U. S. square nuts, to be sufficient track fastenings for 39,000 tons 75-pound rails, and 1,689,600 pounds of angle splices, to be sufficient for 100 miles of 75-pound rails. Plaintiff further states that on demand of plaintiff the defendant furnished the plaintiff during the year 1899, and prior to June 26th of said year 1899, under the terms of said contract, the following, to wit, 140,000 pounds of said track spikes 5½×9/16, 60,000 pounds of said track bolts 7/8 and ¾, U. S. nuts, and 762,000 pounds of said angle splices. Plaintiff further states that it duly performed all the conditions of said agreement on its part, and did during the year 1899 buy, and did during the year 1899 lay, 39,000 tons 75-pound rails, and was during the year 1899 ready and willing to receive at said Madison, Illinois, and did on the 27th day of June, 1899, demand of defendant, and was ready to pay for, the remainder of the said material agreed to be delivered as aforesaid by defendant during the year 1899, and not theretofore furnished by defendant as aforesaid, to wit, 1,840,000 pounds of said track spikes 5½×9/16, 352,500 pounds of track bolts 7/8 and ¾, with U. S. square nuts, and 927,600 pounds of said angle splices; but defendant refused to deliver the same to plaintiff, to its damage in the sum of $62,402, for which, with interest from December 31, 1899, it prays judgment."

The answer is lengthy, and need not be further analyzed than to say it sets up, inter alia, two defenses: First, that the contract pleaded is unilateral; and, second, that the plaintiff did not perform all the conditions precedent required by the contract to be performed by it before it was entitled to demand of the defendant a performance of its part of the contract.

Upon the trial the plaintiff introduced various correspondence between the parties hereto and the Republic Iron & Steel Company, to whom the defendant company sold out its plant and business on May 15, 1899, and also produced certain oral testimony. In condensed form, the substance of the correspondence is this: First. On January 18, 1899, the defendant wrote to the plaintiff as follows: "Concerning verbal instructions from you, we have accepted the order number 10 from the St. L., P. & N. Ry. for 10,000 pair of splices to be deducted from the contract we have with your company for 100 miles. This will leave sixty-five miles still due on the contract, same prices and terms as the contract with your company." Second. On March 11, 1899, the defendant wrote to the plaintiff as follows: "Will you kindly advise me if you are likely to need any track fastenings on current contract during April, May, and June, so that we can reserve the total for you? Your answer to this will be considered an estimate, and not binding upon you." Third. To this the plaintiff replied on March 15, 1899, saying it would not need any track fastenings of any consequence prior to June, 1899. Fourth. On May 15, 1899, the defendant wrote the plaintiff that it had sold out its plant and business to the Republic Iron & Steel Company, and asking, if the plaintiff desired any track fastenings made in June or even July, it should say so at once, as the works were fast filling up with orders that would take the whole summer. The plaintiff is not shown to have replied to this letter at all. Fifth. On June 27, 1899, the plaintiff wrote to the defendant (ignoring the sale to the Republic Iron & Steel Company), and demanded performance of the terms of the contract on its part, and delivery "at the very earliest possible moment" of "the balance of the angle bars due under said contract; also all the bolts, nuts, and spikes." Sixth. On June 29, 1899, the defendant acknowledged receipt of the plaintiff's letter of June 27th, and said it could not deliver any of the track fastenings before 60 days, and made some reference to the character of the spikes to be furnished, and asked if the plaintiff had ordered the splices. Seventh. On July 3, 1899, the plaintiff replied, saying that the defendant might consider its letter of June 27th "to be an order for the angle bars, bolts, nuts, and spikes to the entire amount due this company under the contract," and asked that they be delivered "at the very earliest possible date." Eighth. On August 15, 1899, the Republic Iron & Steel Company wrote to the plaintiff as follows: "Dear Sir: In regard to the telephone request from your office for immediate delivery of the track fastenings claimed to be due you under contract with your company of December 9th, 1898, we beg to advise you that we cannot see our way to accede to your demands. The spirit and intent of this contract of December 9th, 1898, was to furnish you such material, up to the limit named, as should be necessary in the prosecution...