Laclede Construction Company v. Tudor Iron Works

• Citation: 69 S.W. 384,169 Mo. 137
• Parties: LACLEDE CONSTRUCTION COMPANY, Appellant, v. TUDOR IRON WORKS
• Decision Date: 18 June 1902
• Court: United States State Supreme Court of Missouri

69 S.W. 384

169 Mo. 137

LACLEDE CONSTRUCTION COMPANY, Appellant, v. TUDOR IRON WORKS

Supreme Court of Missouri, First Division

June 18, 1902

Appeal from St. Louis City Circuit Court. -- Hon. Franklin Ferris Judge.

Affirmed.

Winston Babcock, Strawn & Shaw for appellant.

(1) It is the law that a unilateral contract, while it remains wholly executory, can not be enforced by either party. But it is equally well settled that a unilateral contract is one of that class of contracts which becomes in law an enforcible contract so soon as it is performed or so soon as the promisee engages to do or does or begins to do that which is or which may be considered as a condition of the promise of the promisor. Lungstrass v. Ins. Co., 48 Mo. 204; Lindell v. Rokes, 60 Mo. 251; Keller v Ybarru, 3 Cal. 147; Plumb v. Newman, 129 Ill. 106; American Publishing & Engraving Co. v. Walker, 87 Mo.App. 510; Jones v. Durgan, 16 Mo.App. 374; Frue v. Houghton, 6 Col. 324. (2) The giving of a peremptory instruction directing a verdict for the defendant is an admission of every material fact which the evidence proves, or tends to prove, or which may be a reasonable inference deducible therefrom. If there are any facts proven in the case, or any facts which might reasonably be inferred from the evidence in the case, upon which a verdict for the plaintiff might be sustained, then it is error for the court to instruct the jury to find for the defendant. Bank v. Simpson, 152 Mo. 654, 54 S.W. 511; Bender v. Railroad, 137 Mo. 244, 37 S.W. 133; Frank v. St. Louis, 110 Mo. 525, 19 S.W. 940; Huth v. Dohl, 76 Mo.App. 675; Herboth v. Gaal, 47 Mo.App. 256. (3) Under the practice in this State, a party will not be driven out of court merely from the fact that he or she has alleged more than has been proven when the unproven allegations are shown to be unnecessary averments to authorize a recovery; nor will the plaintiff's action be denied merely because the testimony offered does not support certain averments in his or her petition, when it does support other averments which are sufficient to authorize a recovery. Gannon v. Laclede Gas Company, 145 Mo. 511, 46 S.W. 970; Knox County v. Goggin, 105 Mo. 182, 16 S.W. 686; Radcliffe v. Railroad, 90 Mo. 134, 2 S.W. 279; Kropman v. Cahoon, 47 Mo.App. 363.

McKeighan & Watts for respondent.

(1) Every pleading must proceed upon some single, definite theory, and a party must stand or fall upon the theory of his case, as he presents it in his pleading. Christian v. Ins. Co., 143 Mo. 450; Clements v. Yates, 69 Mo. 623; Mays v. Pryce, 95 Mo. 603; Stix v. Matthews, 79 Mo. 96; Huston v. Tyler, 140 Mo. 252; Baker v. Updike, 155 Ill. 54; Copeland v. Summers, 138 Ind. 219; Peters v. Guthrie, 119 Ind. 44; Feder v. Field, 117 Ind. 386; Armacost v. Lindley, 116 Ind. 295; Haubelt Bros. v. Mill Co., 77 Mo.App. 672. (2) Courts will give effect to a contract as the parties themselves have made it, and will not disregard words used by the parties descriptive of the subject-matter. Blaine v. Knapp & Company, 140 Mo. 241; Sachleben v. Wolfe, 61 Mo.App. 28; Norrington v. Wright, 115 U.S. 188; Filley v. Pope, 115 U.S. 213; Webb v. Ins. Co., 14 Mo. 3; Calloway v. Henderson, 130 Mo. 77; Halpin v. Manny, 33 Mo.App. 388. (3) A condition precedent must be complied with; and until there is such compliance, the promisor is not bound. Lorimer v. Tyler, 88 Mo. 661; Lawson on Contracts, sec. 405; Filley v. Pope, 115 U.S. 213. (4) Inasmuch as it does not appear from the bill of exceptions that the motion for a new trial was filed during the term at which the trial was had, the action of the court in overruling the motion can not be reviewed. United States v. Gamble, 10 Mo. 459; Bateson v. Clark, 37 Mo. 31; Blount v. Zink, 55 Mo. 455; Railroad v. Carlisle, 94 Mo. 166; State v. Brooks, 92 Mo. 591; Welch v. St. Louis, 73 Mo. 71; Sternburg v. Levy, 159 Mo. 617; State ex rel. v. Merriam, 159 Mo. 655; Burns v. Capstick, 62 Mo.App. 57; Story & Camp v. Ragsdale, 30 Mo.App. 196; State ex rel. v. Gaither, 77 Mo. 304.

OPINION

MARSHALL, J.

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 propose to furnish your company sufficient track fastenings for 39,000 tons 75 lb. rails, as follows:

Track Spikes 5 1/2 x 9/16 $ 1.48 per 100 lbs.

Track bolts 7/8 and 3/4 with U.S. nuts 1.69 per 100 lbs.

Angle Splices, sufficient for 100 miles of 75 lb. rail 1.05 per 100 lbs.

"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 5 1/2 x 9/16, and 412,000 pounds of track bolts 7/8 and 3/4 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 5 1/2 x 9/16, 60,000 pounds of said track bolts 7/8 and 3/4 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 seventy-five-pound rails, and was during the year 1899 ready and willing to receive at said Madison, Illinois, and did on the twenty-seventh 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 thereto furnished by defendant as aforesaid, to-wit, 1,840,000 pounds of said track spikes, 5 1/2 x 9/16, 352,500 pounds of track bolts 7/8 and 3/4 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 and 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." To which the plaintiff replied on March 15, 1899, saying it would not need any track fastenings of any consequence prior to June, 1899.

Third. On May 15, 1899, the defendant wrote the plaintiff that it had sold out its plant and business to the Republic Iron and 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.

Fourth. On June 27, 1899, the plaintiff wrote to the defendant (ignoring the sale to the Republic Iron and 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."

Fifth. 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 sixty days, and made some reference to the character of the spikes to be furnished, and asked if the...