Larson v. Crescent Planing Mill Co.

• Citation: 218 S.W.2d 814
• Decision Date: 15 March 1949
• Docket Number: No. 27504.,27504.
• Parties: LARSON v. CRESCENT PLANING MILL CO.
• Court: Missouri Court of Appeals

218 S.W.2d 814

LARSON v. CRESCENT PLANING MILL CO.

No. 27504.

St. Louis Court of Appeals. Missouri.

March 15, 1949.

Appeal from St. Louis Circuit Court; Francis E. Williams, Judge.

"Not to be reported in State Reports."

Suit by J. P. Larson, doing business as St. Louis Listing Bureau, against Crescent Planing Mill Company, a corporation, for an accounting of money allegedly due plaintiff under written contracts. From an adverse decree, defendant appeals.

Judgment reversed and cause remanded with directions.

Edward C. Schneider, of St. Louis, for appellant.

Robert A. Roessel, of St. Louis, for respondent.

BENNICK, Commissioner.

This proceeding was instituted as a suit in equity for an accounting of the amount allegedly due plaintiff under two written contracts which had existed between him and defendant. The court found the issues in favor of plaintiff and against defendant, and as a part of its decree rendered a money judgment in favor of plaintiff for the aggregate amount of $7,113.08, of which the sum of $5,570.55 is actually in dispute. It is of course the latter figure which determines appellate jurisdiction, although the whole amount of the money judgment is within the pecuniary jurisdiction of this court.

The controversy has to do with the amount of additional compensation due plaintiff under his contracts in connection with the sale of millwork by defendant, Crescent Planing Mill Company, during the period over which the contracts were in force.

The plaintiff, J. P. Larson, is a man of long experience in the planing mill business. Starting out more than fifty years ago as an employee, he eventually became the owner of his own company, and at one time or another was active in all phases of the trade.

Some years ago he went into the business, under the name of St. Louis Listing Bureau, of furnishing and rendering services to planing mills operating in the St. Louis area. These services, performed under written contracts with some sixteen subscribing planing mills, consisted, as will more specifically appear, of estimating the quantity items of millwork to be required under plans and specifications for proposed jobs. As soon as he had estimated the quantity items to be required, he would make his report to the mill, which would thereupon make use of such report as the basis for the preparation of its bid on the job. Payment for his services was made on a percentage basis computed for the most part on total sales, but in some instances on the aggregate amount of the estimates. Whichever method of computation was to be employed depended on the contract with the particular subscriber.

Plaintiff entered into his first contract with defendant on February 1, 1935. Thereafter, on October 1, 1938, such contract was superseded by a second contract, which was identical with the first except as to the provisions determining the amount of compensation to be paid on total sales. As a matter of fact the same form of contract was used with all the subscribing companies except in the case of three companies which, as already indicated, preferred to have plaintiff's compensation computed on the basis of the aggregate amount of estimates.

Defendant, Crescent Planing Mill Company, is not only engaged in the business of supplying special millwork, by which is meant items of millwork which are specially made up to meet the requirements of a particular job, but it also handles stock or standard millwork, which is millwork fabricated in advance according to standard measurements.

According to the terms of the contract, plaintiff agreed to examine drawings, plans, and specifications furnished by defendant or procured from the architect, and from the drawings, plans, and specifications prepare and furnish defendant with complete and accurate lists of the items and quantities of millwork which such data called for so that defendant might apply its prices and submit its bid without the necessity of itself making such lists and calculating such quantities.

It was then provided that for such services defendant should pay plaintiff each month an agreed percentage of its total sales of "millwork for construction purposes" in the preceding month, whether plaintiff's services had been employed with respect thereto or not.

Incidentally, the controversy between the parties revolves around the meaning of the phrase "millwork for construction purposes", which was defined in the contract in the following manner: "Millwork for construction purposes, as used herein, means such millwork, whether stock or special for use in buildings under construction or contemplated. It shall not include furniture, fixtures or other materials not entering into the plans and specifications for the construction of a building. Nor shall the same include sales or deliveries by the subscriber, of millwork to dealers, retail lumber yards or branch houses or affiliates of the subscriber."

It was provided that payments from defendant to plaintiff should be due on or before the fifteenth of each month, and should be accompanied by a statement taken by defendant from its books of all "millwork for construction purposes" delivered by defendant in the preceding month to which plaintiff's contract percentage applied. If the amount due plaintiff for any particular month should not equal $100, defendant should nevertheless pay him a net minimum of such amount, with a final adjustment to be made upon the termination of the agreement.

A concluding provision was that at convenient intervals plaintiff should have the privilege of causing defendant's books to be examined by certified public accountants in order to check the amount of sales of items coming within the contract.

There is no question but that plaintiff performed all the services imposed upon him under such contractual relationship until its termination at his instance on March 31, 1943. However there had been more or less of dissatisfaction throughout the latter part of that period with respect to the exercise of his privilege of having defendant's books examined.

At the end of each month, defendant, using forms supplied by plaintiff, would send him a report of its sales during such month, and from such report plaintiff would then compute the compensation due him and bill defendant accordingly. While this was the system provided for by the contract, the obvious fact was that it left plaintiff wholly dependent upon the accuracy and completeness of defendant's reports, save only as he might avail himself of the privilege reserved in the contract of having defendant's books checked from time to time by certified public accountants.

There were but two examinations of defendant's books, the first on June 21, 1937, and the second after the institution of this suit, which was brought on April 5, 1944.

The first check showed defendant indebted to plaintiff for a balance of $290.32, but there was a dispute as to the occasion for making the check. Plaintiff testified that the examination was made at his request, and after he had been seeking such an examination for over two years. The examination went back to the inception of the contract, and was made by plaintiff in conjunction with one Twillenmeyer, the secretary-treasurer of defendant company. Twillenmeyer testified, on the other hand, that plaintiff had never requested a check of the books prior to the termination of the contract, and that the examination of June 21, 1937, was made at his own instance in order to get plaintiff to account. According to Twillenmeyer's version of the facts, his bookkeeper, in making the monthly reports to plaintiff, had been mistakenly including exempt items of millwork for which defendant was entitled to credit, and being unable to get plaintiff to come in for an adjustment, he had finally stopped payments in order to force him to account.

Plaintiff testified that after the completion of the first check he soon began to suspect that defendant was still making incorrect reports because of the fact that its reports of total sales were invariably for amounts which showed him entitled to less than the minimum compensation. He did everything he could to obtain a check without giving offense, but was constantly put off by Twillenmeyer upon the ground that such a check would not only involve too much work, but would also be of no avail from plaintiff's standpoint since it would undoubtedly reveal that he was indebted to defendant. When pressed as to why he had not insisted upon a check, plaintiff explained that to have done so would have meant the parting of the ways between him and defendant, and that he had deemed it best under all the circumstances not to push the matter to the breaking point.

Again there was a dispute between plaintiff and Twillenmeyer as to why the second check was so long denied. Twillenmeyer testified, with corroboration from one Naumann, the president of the company, that he was compelled to refuse plaintiff's request for a check because the company was then engaged in war work, and was forbidden from revealing any of its drawings, plans, and specifications, all of which related to the work it was then doing. Twillenmeyer admitted, however, that he had told plaintiff's counsel that if a check were made, it would show his company entitled to credit. Plaintiff denied that Twillenmeyer had ever given him the excuse that because defendant was engaged in war work, he could not permit any one to check the records.

In his petition, after reciting the execution of the two contracts and his performance of services thereunder, plaintiff charged that he had made demand upon defendant to examine its books for the purpose of ascertaining the amount due him, but that defendant had refused to allow such examination; that he had no adequate remedy at law; and that without an accounting he was unable to state the exact amount he was entitled to recover. His prayer was that he be given an accounting of defen...