Modine Mfg. Co. v. Carlock, No. 57139

CourtMissouri Supreme Court
Writing for the CourtPER CURIAM
Citation510 S.W.2d 462
PartiesMODINE MANUFACTURING COMPANY, a corporation, Respondent, v. M. F. CARLOCK, Appellant
Decision Date13 May 1974
Docket NumberNo. 2,No. 57139

Page 462

510 S.W.2d 462
MODINE MANUFACTURING COMPANY, a corporation, Respondent,
v.
M. F. CARLOCK, Appellant.
No. 57139.
Supreme Court of Missouri, Division No. 2.
May 13, 1974, Opinion Modified on Court's Own Motion.
Motion for Rehearing, Modification or Transfer to Court en
Banc Denied June 10, 1974 .

Page 464

Frank N. Gundlach, Thomas E. Wack, Armstrong, Teasdale, Kramer & Vaughan, St. Louis, for respondent.

Campbell & Campbell, David L. Campbell, Morris M. Rosenthal, St. Louis, for appellant.

HOUSER, Commissioner.

Modine Manufacturing Company, the corporate successor to American Foundry and Furnace Company, sued M. F. Carlock on an open account for $10,677. Carlock filed an answer and a counterclaim for $150,000 damages. Tried to the court without a jury judgment was rendered for Modine for $12,506, including interest, on the petition, and for Modine and against Carlock on the counterclaim. Carlock appealed prior to January 1, 1972.

We review the case upon both the law and evidence as in suits of an equitable nature, not setting aside the judgment unless clearly erroneous and giving due regard to the opportunity of the trial court to judge of the credibility of the witnesses. Rule 73.01(d), V.A.M.R.; Public Water Supply Dist. No. 8 v. Maryland Casualty Co., 478 S.W.2d 293(1) (Mo.1972). The law of Illinois, where the contracts in question were made and performed and the transactions occurred, governs the substantive contractual rights of the parties. Schoene v. Hickam, 397 S.W.2d 596(5) (Mo.1965).

On November 8, 1960 American and Carlock signed a printed form of Manufacturer's Agreement naming Carlock as a Distributor (Exhibit 1). Par. 1 granted to Carlock 'a franchise to sell' designated heating and ventilating equipment and air handling products of American in Cook, Lake and DuPage Counties in Illinois. In Par. 3 Carlock agreed 'to confine his selling activities to customers located' in that territory, and that in instances in which Carlock's customer directed delivery of products to its affiliates located in another

Page 465

distributor's territory Carlock should work out with the distributor in that other territory, in advance of consummation of sale, a satisfactory installation and service arrangement, including compensation. Par. 4 provided:

'In only those instances set forth below we reserve all rights without limitations to sell within Distributor's territory either direct or through others any products without any obligation to pay Distributor any commission or other charges on the following sales.

'(a) To the United States or any State Government or any department or bureau thereof.

'(b) To Manufacturers who install such equipment in or with their products.

'(c) To the following established Sales Outlets.

Powers Regulator Co. and their Sales Outlets.

Barber-Colman Co. and their Sales Outlets.'

Par. 5 required American to assist Carlock in developing the territory by personal calls, mailings, and trade journal advertising, and to 'direct all inquiries received from the territory' to Carlock. Par. 7 provided: 'Manufacturer's prices to Distributor shall be the same as those extended to all other Distributors.' In Par. 8 Carlock agreed to pay American on every shipment of its products 'Distributor's price from Manufacturer in effect at the time of such shipment and on the following terms: 2%--10 days--Net 30 days, F.O.B.' American, at Bloomington, Illinois. Carlock agreed to pay all installation and service costs. Par. 16 provided: 'This agreement shall continue in force and govern all relations and transactions between parties hereto until terminated. Either party may terminate this agreement upon thirty (30) days written notice.' Par. 18 provided that Carlock was not the agent or legal representative of American and had no authority to obligate or bind American in any manner. Par. 20 provided: 'It is declared by both parties that there is no oral or other agreement or understanding between them affecting this agreement or relating to the selling, installation or servicing of products. This agreement supersedes all previous agreements between the parties.'

During the first year of Carlock's activities in the Chicago area, beginning in March, 1961, he operated on salary as an employee and not as a manufacturer's representative. American realized all profits from his sales. He billed customers on his own stationary. When payment by check was made Carlock endorsed the checks to American.

After the first year Carlock operated as a manufacturer's representative. He was a sole proprietor. He bought items from American and resold them at prices determined by him. His profit was the difference. American would send Carlock an invoice a few days after shipment of goods purchased by Carlock and mail monthly statements of account.

American was merged into Modine in 1965, and all references to 'American' are to be understood as including its successor Modine, where appropriate. Modine assumed American's contractual obligations. Carlock's representation of Modine was terminated as of October 31, 1966.

Modine brought this action April 27, 1967 to recover items allegedly due on open account between June 29, 1964 and May 31, 1965. Carlock filed an answer July 25, 1967, amended May 15, 1970, asserting offsets and credits of $2,060 on account; offsets and credits by way of counterclaim, and the affirmative defense of breach of contract. Carlock filed a counterclaim October 6, 1969, amended May 15, 1970, seeking $150,000 damages for breach of the written contract and alleged oral agreements.

Page 466

The case was tried to the court without a jury. Modine called Carlock as its only witness and offered 13 exhibits in evidence. Carlock testified in his own behalf on his answer and counterclaim and called as witnesses Charles Hopper, an engineer, and Henry Sharp, a manufacturers' representative who testified as an expert on customs and usages in the trade. The former sales manager and the former president of American testified in rebuttal. Carlock offered 301 exhibits in evidence, 295 of which were received. The exhibits consisted of the printed Manufacturer's Agreement, correspondence, memoranda, purchase orders, invoices, credits, debits, checks, interoffice communications, drawings, specifications, computations, documentary memorials of innumerable business transactions between American or Modine and Carlock, other distributors, customers and purchasers, extending over a 5-year period, and lengthy interrogatories and answers.

The trial court's order deciding all issues on both petition and counterclaim for Modine and against Carlock was accompanied by written findings of fact and conclusions of law.

On Carlock's Counterclaim

The areas of disagreement are as follows:

Whether the counterclaim, or any part of it, is barred by the statute of limitations.

If not, whether the distributor's agreement, Exhibit 1, is ambiguous, thereby authorizing admission of extrinsic evidence of the contractual obligations of the parties.

If so, of what terms the complete agreement consists.

Whether Carlock's territory was exclusive, and the perimeters of exclusivity.

Whether American and/or Modine made sales and/or shipments of their products into Carlock's exclusive territory in violation of the contractual arrangements.

If so, the amount of damages, if any, to which Carlock is entitled on this feature of the case.

Whether engineering and consulting work performed by Carlock effecting specification of manufacturer's products resulting in sales outside Carlock's territory were compensable under the contractual arrangements; whether in fact such specifications occurred through Carlock's efforts, for which he was not compensated, and the amount of damages, if any, to which he is entitled on this feature of the case.

Whether Carlock was entitled to additional amounts under the sales bonus discount plan for his activities during the years 1962--1965, both inclusive.

Whether American allowed other distributors and other firms greater discounts than those allowed Carlock, in violation of the contractual arrangements of the parties, and if so the amount of damages, if any, to which Carlock is entitled on this score.

Whether American refused to cooperate with Carlock in developing his territory, in violation of its contractual obligations, to his damage.

Statute of Limitations

Modine alleged in both Counts I and II of its reply to Carlock's counterclaim that each count 'is barred by the applicable Statutes of Limitations of both Illinois and Missouri.' Modine failed to plead or specify what particular limitation statute of either state was applicable, either by reference to a section number or by stating the number of years which it was claimed effected a bar; without stating facts showing that the counterclaim was barred by limitations, and without alleging that the statute of limitations of either state operated to extinguish the

Page 467

cause of action itself and not merely bar the remedy. For these reasons the defense of limitations is not available under the lex fori, which governs with respect to the limitation of actions. Nelson v. Browning, 391 S.W.2d 873, 880(17) (Mo.1965). The statute of limitations is a defense which must be set forth affirmatively. Rule 55.08. 'A party desiring to avail himself of the statute of limitations must plead the particular statute upon which he relies. Vail v. Jacob, 7 Mo.App. 571; Hunter v. Hunter, 50 Mo. 445.' Murphy v. De France, 105 Mo. 53, 62, 15 S.W. 949, 951--952 (1891). In Knisely v. Leathe, 256 Mo. 341, 166 S.W. 257 (1914), this Court held that one seeking to take advantage of the statute of limitations 'must plead the very provision on which he depends.' 166 S.W. l.c. 261. In Gibson v. Ransdell, 188 S.W.2d 35 (Mo.1945), where the bar of limitations was invoked but an inapplicable section was specified, it was held that the cause could not be ruled upon the...

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39 practice notes
  • Jake C. Byers, Inc. v. J.B.C. Investments, No. 59120
    • United States
    • Court of Appeal of Missouri (US)
    • July 14, 1992
    ...contend, that plaintiff was told what the "custom" and "usage" was. Defendants' reliance on Modine Manufacturing Co. v. Carlock, 510 S.W.2d 462, 468 (Mo.1974) is misplaced. In Modine, the contract was ambiguous. The evidence was admitted to establish the meaning of an ambiguous contract, un......
  • Busch & Latta Painting Corp. v. State Highway Commission, No. KCD29715
    • United States
    • Court of Appeal of Missouri (US)
    • March 3, 1980
    ...evidence is not contradictory of, repugnant to, or inconsistent with the terms of the contract. Modine Manufacturing Company v. Carlock, 510 S.W.2d 462 (Mo.1974). It is only when the contract is ambiguous, and extrinsic evidence is proper, that construction of the agreement is for the jury ......
  • Evans v. Mo-Kan Teamsters Pension Fund, No. 75 CV 411 W 4.
    • United States
    • United States District Courts. 8th Circuit. Western District of Missouri
    • July 24, 1980
    ...S.W.2d 538 (Mo.1965); City-Wide Asphalt Co. Inc. v. City of Independence, 546 S.W.2d 493 (Mo.App.1976); and Modine Mfg. Co. v. Carlock, 510 S.W.2d 462 (Mo. 1974).s eligibility for a pension...
  • Lacey v. State Bd. of Reg. for Healing Arts, No. WD 62574.
    • United States
    • Missouri Court of Appeals
    • March 16, 2004
    ...includes evidence concerning the practical construction which the parties themselves place upon a contract. Modine Mfg. Co. v. Carlock, 510 S.W.2d 462, 468 (Mo.1974). "`It is well established that the interpretation placed on the contract by the parties prior to the time it became a matter ......
  • Request a trial to view additional results
39 cases
  • Jake C. Byers, Inc. v. J.B.C. Investments, No. 59120
    • United States
    • Court of Appeal of Missouri (US)
    • July 14, 1992
    ...contend, that plaintiff was told what the "custom" and "usage" was. Defendants' reliance on Modine Manufacturing Co. v. Carlock, 510 S.W.2d 462, 468 (Mo.1974) is misplaced. In Modine, the contract was ambiguous. The evidence was admitted to establish the meaning of an ambiguous contract, un......
  • Busch & Latta Painting Corp. v. State Highway Commission, No. KCD29715
    • United States
    • Court of Appeal of Missouri (US)
    • March 3, 1980
    ...evidence is not contradictory of, repugnant to, or inconsistent with the terms of the contract. Modine Manufacturing Company v. Carlock, 510 S.W.2d 462 (Mo.1974). It is only when the contract is ambiguous, and extrinsic evidence is proper, that construction of the agreement is for the jury ......
  • US Durum Milling, Inc. v. Frescala Foods, Inc., No. 89-1697C(6).
    • United States
    • United States District Courts. 8th Circuit. United States District Court (Eastern District of Missouri)
    • March 4, 1992
    ...occurred. O'Donnell v. Saint Luke's Episcopal Pres. Hosp., 800 F.2d 739, 740 (8th Cir.1986) (citing Modine Mfg. Co. v. Carlock, 510 S.W.2d 462, 464 (Mo. 785 F. Supp. 1373 10. The elements of proof under Missouri law for a cause of action based on a breach of contract are as follows: (1) the......
  • Tudor v. Tudor, No. 11649
    • United States
    • Court of Appeal of Missouri (US)
    • May 26, 1981
    ...statute relied upon must be pointed out,' 188 S.W.2d l.c. 37, citing Knisely v. Leathe.'' Modine Manufacturing Company v. Carlock, 510 S.W.2d 462, 467 (Mo.1974). The only specific statute of limitations pleaded and on which defendant relies in this appeal is § 516.350. From what has been he......
  • Request a trial to view additional results

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