M. A. Brown Paper B. Co. v. King-Brinsmade Mercantile Co.

• Decision Date: 04 May 1915
• Docket Number: No. 13975.,13975.
• Citation: 176 S.W. 251,190 Mo. App. 584
• Parties: M. A. BROWN PAPER BOX CO. v. KING-BRINSMADE MERCANTILE CO.
• Court: Missouri Court of Appeals

176 S.W. 251

190 Mo. App. 584

M. A. BROWN PAPER BOX CO. v. KING-BRINSMADE MERCANTILE CO.

No. 13975.

St. Louis Court of Appeals. Missouri.

May 4, 1915.

Appeal from St. Louis Circuit Court; Geo. C. Hitchcock, Judge.

Action by the M. A. Brown Paper Box Company against the King-Brinsmade Mercantile Company. Plaintiff took a nonsuit, and from the denial of its motion to set it aside, it appeals. Affirmed.

Taylor & Chasnoff, of St. Louis, for appellant. Lee W. Grant and Barton N. Grant, both of St. Louis, for respondent.

ALLEN, J.

This is an action for the alleged breach of a written contract whereby defendant, as plaintiff avers, agreed to purchase from plaintiff all of the paper boxes, of certain sizes and descriptions, which defendant might require in its wholesale millinery business during the period beginning June 3, 1911, and ending January 1, 1912. Plaintiff alleges that it was ready and willing to perform the contract on its part, but that defendant repudiated it, and refused to comply with the terms thereof, whereby plaintiff was damaged in the sum of $2,000. The answer is a general denial.

The case has had two trials in the circuit court. Upon the first trial thereof plaintiff suffered a nonsuit, which upon its motion was afterwards set aside, and a new trial granted. Upon the second trial the court, at the close of plaintiff's case, ruled that under the law and the evidence plaintiff could not recover. Plaintiff thereupon took a nonsuit, and, after unsuccessfully moving to have the same set aside, brought the case here by appeal.

Plaintiff is a corporation engaged in the manufacture of paper boxes. On June 3 1911, plaintiffs president, in response to a telephone message, went to defendant's place of business and met one Mars, a clerk in defendant's employ. A conversation ensued concerning the prices of paper boxes used by defendant in its business, and thereupon the following instrument was executed:

                              "St. Louis, Mo., June 3, 1911
                

"King-Brinsmade Mercantile Co. agrees to buy, and the M. A. Brown Paper Box Company to sell, the following described paper boxes for a period ending January 1st, 1912; terms, 60 days 1%:

"Regular packing box, 22½x14¾x11½, No. 50 plain strawboard as per sample, 72 cents per dozen.

"18½x18½x18, No. 3 box as sample, $1.16 per dozen.

"17x17x17, No. 2 box as sample, $.96 per dozen.

"Time required for delivery one day. "Covered in white plate as per sample submitted; time required for delivery four days. "12x12x8, No. 60 lined, 45 cents per dozen. * * * * * *

"With tape and label.

                      "M. A. Brown Paper Box Co
                         "By [Signed] Jno. E. Brown
                      "King-Brinsmade Mercantile Co
                                 "[Signed] R. E. Mars."
                

Mt. Brown, plaintiff's president, testified that shortly after the execution of the above instrument he was informed by defendant's president that unless certain changes were made in the prices stated therein defendant would not purchase any boxes from the plaintiff; that plaintiff refused to reduce the prices, whereupon defendant undertook to cancel the contract, though plaintiff had gone to certain expense in preparing to execute the same. He further testified that it was customary in the millinery business to have quotations submitted by different box manufacturers, and to give the successful bidder a contract to supply all boxes that might be needed during an entire "season."

Defendant's president, Mr. Brinsmade, was called as a witness by plaintiff. His testimony is to the effect that it was defendant's custom to call upon box manufacturers at the beginning of a season to furnish written quotations on boxes, and that the manufacturer quoting the best prices would be given orders from time to time as boxes were required in defendant's business, and, if such manufacturer did not furnish boxes promptly, orders were placed elsewhere, and that upon the occasion in question plaintiff's president was summoned to give quotations to be thus utilized. And it appears that defendant had previously purchased boxes from plaintiff without making a contract for the season's supply. Further testimony of this witness tends to show that Mars had no authority to enter into a contract binding defendant corporation to purchase boxes exclusively from plaintiff during the period above mentioned.

The written contract does not in terms require defendant to buy or plaintiff to sell any number of boxes whatsoever. There can be no doubt, we think, that the instrument does not give rise to any binding obligation on the part of plaintiff to furnish, or on the part of defendant to receive and pay for, any boxes. It is evident that the instrument imports nothing more than an agreement fixing the prices of boxes, of the various descriptions mentioned; to be binding upon the parties in case defendant should see fit to order from plaintiff any such boxes. We have briefly referred to the testimony relative to the circumstances under which the instrument was executed because of the contention made that the writing, when read in the light of the surrounding circumstances, should be construed as binding the defendant to purchase from plaintiff all of tie boxes, of the character mentioned therein, that might be required in defendant's business during the period in question. But we think that there is no room for such construction. The...