May v. Crawford

• Decision Date: 29 January 1898
• Citation: 142 Mo. 390,44 S.W. 260
• Court: Missouri Supreme Court
• Parties: MAY et al. v. CRAWFORD et al.

44 S.W. 260

142 Mo. 390

MAY et al. v. CRAWFORD et al.

Supreme Court of Missouri, Division No. 1.

January 29, 1898.

CONTRACTS — LIQUIDATED DAMAGES.

A department store purchasing $46,000 worth of goods of a rival store, which retained other kinds of goods worth $350,000, and contracting to pay $5,000 as liquidated damages if it advertised that its purchase included any goods other than those actually bought of its rival, is liable for more than nominal damages for a breach of such contract.

Appeal from St. Louis circuit court; L. B. Valliant, Judge.

Action by D. May & Co. against D. Crawford & Co. Judgment for nominal damages only, and plaintiffs appeal. Reversed.

Nathan Frank and Seymour D. Thompson, for appellants. W. B. Homer, for respondents.

BARCLAY, C. J.

This action was brought to recover $5,000 damages for alleged breach of a contract. The plaintiffs are the firm of D. May & Co., who carry on the mercantile establishment in St. Louis generally known by the name of "Famous." The defendants, D. Crawford & Co., have a large department store on the same street as plaintiffs, and nearly opposite to plaintiffs' store. In January, 1894, both of the firms were operating these large stores when the contract in suit was made between them for the purposes expressed in it. The price which defendants paid to plaintiffs for the goods they acquired under the agreement was about $46,000. The plaintiffs still retained a large stock, amounting to the cost value of over $350,000, and were competitors of defendants in various lines of retail trade. The goods sold by plaintiffs to defendants consisted of black and colored dress goods, silks, satins, velvets, plushes, linens, white goods, domestics, woolens, cotton goods, lace curtains, draperies, portieres, upholstery, blankets, comfortables, lap robes, linings, notions, leather goods (except boots and shoes), art needlework, fancy goods, jewelry, perfumes, soaps, toilet articles, kid gloves, fabric gloves, silk mittens, woolen mittens, dress trimmings, mohair goods, silk braids, buttons, buckles, laces, embroideries, handkerchiefs, veilings, ruchings, ladies' neckwear, muslin underwear, corsets, lace caps, silk caps, infants' wear, sewing machines, and various etceteras of a similar kind, kept in the departments into which these various goods had been distributed. The goods retained by the plaintiffs in the store called "Famous," after making this sale to the defendants, consisted of the clothing, the house furnishing goods, the china and crockery, the men's furnishing goods, and hats, caps, trunks, and valises. They sold to the defendants all the goods in the departments above described, and went out of business so far as those lines were concerned, but continued business in their departments containing the goods last enumerated. After this sale the plaintiffs ceased to be competitors with the defendants in respect of the goods so sold to them, but continued to be such competitors in respect of the goods retained by themselves. The principal parts of the contract are as follows, after a recital of agreement by plaintiffs to sell to defendants certain goods, etc., "which D. May & Co. have on hand in their store at the close of business on the 9th day of January, 1894, situated in the building of the Famous Shoe & Clothing Co., on the northwest corner of Broadway and Morgan street, in the city of St. Louis, viz.: Black and colored dress goods kept and sold in department F; silks, satins, velvets, and plushes, kept and sold in department G; linens and white goods, kept and sold in department H; domestics, woolen, cotton goods, etc., kept and sold in department I; lace curtains, draperies, portieres, upholstery, blankets, comfortables, lap robes, etc., kept and sold in department J; linings, kept and sold in department K; notions, leather goods, art needlework, fancy goods, jewelry, perfumes, soaps, toilet articles, etc., kept and sold in department N; kid gloves, fabric gloves, silk mittens, woolen mittens, etc., kept and sold in department O; dress trimmings, mohair, silk braids, buttons, buckles, etc., kept and sold in department P; laces, embroideries, etc., kept and sold in department Q; handkerchiefs, veilings, ruchings, ladies' neckwear, etc., kept and sold in department R; muslin underwear, corsets, lace and silk caps, infants' wear, sewing machines, etc., kept and sold in department S, — it being the intention of said D. May & Co. in selling, and said D. Crawford & Co. in buying, the merchandise in the aforementioned departments, that said transfer of merchandise shall include any and all other articles kept and sold by said D. May & Co. in said departments not heretofore particularly and individually mentioned." Then follows a statement of the method by which the value of the goods shall be arrived at, and then the contract proceeds, beginning a paragraph, as follows:

"The receipt of five thousand ($5,000) dollars is by these presents acknowledged by D. May & Co. from said D. Crawford & Co., as a part payment on the purchase price of said merchandise hereinabove enumerated; it being understood that the balance that may be found to be due D. May & Co., upon the completion of the invoice by them, shall be paid them in cash, without discount or deduction, upon said completed invoice being tendered D. Crawford & Co., and prior to the removal of the goods herein sold. It is mutually agreed and understood, as a condition of this sale, that D. Crawford & Co., the purchasers herein, are by these presents restricted and prohibited from in any way, directly or indirectly, by means of the public press, posters, circulars (mailed or distributed), or by any other public means of any kind or nature whatsoever, from using, in their advertisements of the purchase of the above-mentioned merchandise, the general term `dry goods,' `house furnishing goods,' `chinaware,' `shoes,' `clothing,' `shirt waists,' `cloaks,' `wraps,' `suits,' `furs,' `fur trimmings,' `men's and boys' hats and caps,' `ribbons,' `millinery,' or anything pertaining thereto; it being distinctly agreed and understood that the said D. Crawford & Co. shall be permitted to advertise no other articles as having been bought by them from the said D. May & Co., or Famous, than those actually sold and delivered to them by D. May & Co., and enumerated as sold and kept in the departments mentioned in the first portion of this agreement. As a penalty to insure the faithful carrying out of...