Merit Specialties Co. v. Gilbert Brass Foundry Co.
| Decision Date | 09 July 1951 |
| Docket Number | No. 42167,No. 1,42167,1 |
| Citation | 241 S.W.2d 718,362 Mo. 325 |
| Parties | MERIT SPECIALTIES CO. v. GILBERT BRASS FOUNDRY CO |
| Court | Missouri Supreme Court |
Edward H. Tenney, Jr., William H. Dahman, St. Louis, for plaintiff-appellant.
McDonald, Bartlett & Muldoon, Henry S. Caulfield and Daniel Bartlett, St. Louis, for defendant-respondent.
Action to recover $153,503.30 damages for breach of contract. At the close of plaintiff's evidence, the Court sustained defendant's motion to dismiss 'on ground that upon the facts and the law the plaintiff has shown no right to relief.' The Court discharged the jury and entered judgment of dismissal from which plaintiff has appealed.
The principal questions briefed by the parties are: (1) whether the contract made in November 1947 was too indefinite and uncertain to be enforceable; and (2) whether agreement of April 1948 terminated the contract and released the parties from all liability under it.
It should be noted that defendant's motion to dismiss was the one authorized by Sec. 100 of the Code, Sec. 510.140, R.S.1949, intended to apply to nonjury trials, instead of a motion for a directed verdict, which is proper in a jury case as this one was, under Sec. 112 of the Code. Sec. 510.280, R.S.1949; see Munday v. Austin, 358 Mo. 959, 970, 218 S.W.2d 624, 631. However, since Sec. 112 authorizes a dismissal by the Court, even if a motion for directed verdict is made, and an appeal from an involuntary dismissal is authorized, we can decide the questions raised.
The original contract was a letter, dated November 12, 1947, written by Ben H. Shanklin, plaintiff's president, and accepted by defendant. It was modified by a letter, dated December 3, 1947, likewise accepted; and after another letter of April 7, 1948 (also accepted) the effect of which is in dispute, all operations under the contract tract were suspended and never commenced again. The three letters were, as follows:
'November 12, 1947
'Gilbert Brass Foundary Co.
'5028 Farlin Avenue
'St. Louis, Missouri
'Gentlemen:
'This will confirm the understanding and agreement reached by Mr. A. O. Spoeneman of this company and Mr. James Gilbert of your company, whereby we have agreed to take on certain work for you for a one-year period. We are setting out in this letter our understanding of the entire agreement, and if this meets with your understanding, we will proceed on this basis for the period mentioned.
'You now place with Merit Specialties Co. a firm order in the total amount shown on the attached quotation, at the prices and terms set out in that quotation, except that the clause on the reverse side entitled, 'cancellation' will not be applicable. It is agreed that this is a blanket minimum order, covering deliveries to be made by Merit over a period of one year from the date of this letter. You also agree to increase this blanket order on or before February 1, 1948, if merket conditions warrant by an additional order for this period at the prices shown on the quotation, but the increase will not exceed 35% of that total quantity without our consent. As indicated, the price is f. o. b. your plant in St. Louis, and terms are 30 days net.
'Delivery dates have been omitted intentionally from this order, so that you may schedule the times for delivery of these ordered items as conditions require. You will advise us on or before the 10th day of each month at the latest, of the deliveries desired by you for the following month, so that we will have at least twenty days in which to schedule that month's production of the items in accordance with your directions. Although we will make every effort to accommodate requests for accelerated production where the need was unforeseeable, still it is understood that deliveries are to be made generally at a uniform rate over the one-year period, with the option given to you to direct which parts shall be manufactured in particular months, and the order in which they are to be manufactured. It is also understood that future experience may indicate that a smaller quantity of a particular part may be desired during the year than ordered, and in that case such a reduction may be made by you provided we are notified of that reduction prior to our ordering the necessary materials for that part, and provided also that the quantity of other items is increased so that the total price of the blanket order, as increased on or before February 1, 1948, is not reduced.
'In return for your placing this order with us, we agree that we will not during the period of this agreement, so long as you abide by your agreements, sell to any other jobbers, wholesalers, suppliers, distributors or retailers any of the merchandise or items listed in the attached proposal. We further agree to turn over to you all inquiries received by us from any such persons or companies. You also agree aggressively to promote the resale of the items ordered by this agreement, so that the order may be increased during the one-year period to the maximum amount possible; to the mutual advantage of both of us.
'You agree that you will not have the items listed in the attached proposal form manufactured by any other person or company within a 500 mile radius of St. Louis, Missouri, unless the total amount ordered shall exceed the present order by more than 35%, and even in that case you will not permit manufacture by others unless we have been offered such work and have advised you in writing that we are unable to handle it.
'You will not place orders for any particular item on the attached proposal form during any one month which shall be less than one-day's production of that item at our plant under the schedule and system then being employed by us at our plant in manufacturing that item or similar items.
'We will not be responsible for failures to make deliveries by reason of shortages, failure of regular suppliers to deliver according to desired schedule, or any conditions beyond our control.
'After the end of the one-year period agreed upon, we will negotiate for an extension of this agreement on terms that will be to our mutual advantage in continuing further this work.
'If the terms we have set out above in this letter meet with your understanding of our arrangement and agreement, kindly note your acceptance at the end of this letter, and we will proceed on this basis effective at once.
'Yours very truly
Merit Specialties Co., a
Missouri Corporation
by: Ben H. Shanklin
Ben H. Shanklin, Pres.
'(Corporate Seal)
'Attest:
'Wm. J. Mundy
'Wm. J. Mundy, Sec'y.
Gilbert Brass Foundry Co.,
'A Missouri Corporation
By James F. Gilbert, Pres.
'Gilbert Brass Foundry Co.
'5028 Farlin Avenue
'St. Louis, Missouri
December 3, 1947
'Gentlemen:
'As we have mentioned to you recently, we are anxious to cooperate with you fully in regard to the work covered by our letter contract dated November 12, 1947, and feel that it will be to our mutual benefit and advantage to extend the contract for an additional two years, making a total of three tears. We will be glad to do so provided it is understood that the price of the various items covered by that contract will be adjusted each year on November 12, in case the price of labor and materials shall increase or decrease. Accordingly, we suggest that the next to the last paragraph of our November 12th letter be deleted, and the following substituted in lieu thereof:
'If this amendment to our November 12th contract meets with your approval, please sign the acceptance at the end of this letter.
a Missouri Corporation
By: Ben H. Shanklin
Ben H. Shanklin, Pres.
'(Corporate Seal)
'Attest:
'Wm. J. Mundy
'Wm. J. Mundy, Sec'y.
'Accepted:
Gilbert Brass Foundry Co.
a Missouri corporation
By: James F. Gilbert
James Gilbert, Pres.
'(Corporate Seal)
'Attest:
'John A. Gilbert
'Secretary'
'Gilbert Brass Foundry Co.
'5036 Farlin Ave.
'St. Louis 15, Missouri
April 7, 1948
'Atttention: Mr. James Gilbert
'Gentlemen:
'Reference is made to our current contract with your company for steel pipe fittings, and reference is made to our recent conference on April 2, 1948 in which you requested that we stop production under this contract.
'According to agreement reached, we will complete and ship to you all work which is now in process as follows: 4,500 1/4 galvanized unions with brass seats; 1,000 1/4 black unions without seats; 200 1/2 x 1/8 galvanized bushings; 10000 1/2 x 3/8 galvanized bushings and 6,000 1/2 black pipe plugs. These will be billed at the contract price.
'In making this change in production, it is agreed that you will not be...
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