Moran Bolt & Nut Mfg. Co. v. St. Louis Car Co.

• Decision Date: 26 February 1908
• Citation: 210 Mo. 715,109 S.W. 47
• Court: Missouri Supreme Court
• Parties: MORAN BOLT & NUT MFG. CO. v. ST. LOUIS CAR CO.

109 S.W. 47

210 Mo. 715

MORAN BOLT & NUT MFG. CO. v. ST. LOUIS CAR CO.

Supreme Court of Missouri, Division No. 1.

February 26, 1908.

Rehearing Denied April 1, 1908.

1. APPEAL — QUESTIONS NOT PRESENTED IN APPELLANT'S BRIEF—REVIEW.

A question not presented in the brief of appellant will not be considered.

2. REFORMATION OF INSTRUMENTS—GROUNDS— FRAUD—MISTAKE.

Equity may reform a contract which, by reason of fraud or mistake, does not express the real agreement between the parties.

3. SAME—EVIDENCE—SUFFICIENCY.

Where a witness refused to state positively that a written contract did not state the true agreement of the parties thereto, and only stated that he believed that the contract was otherwise and stated the effect thereof, the evidence did not justify a reformation of the contract.

4. SAME—BURDEN OF PROOF.

To reform a written contract on the ground of mistake, the burden of proof rests on the party asserting it, and he must establish its existence by clear and convincing evidence.

5. SAME—WEIGHT OF EVIDENCE.

In the absence of a preponderance of evidence in favor of the contention that a written contract does not represent the true agreement of the parties, the contract must stand as written, and will not be reformed.

6. EVIDENCE — PAROL EVIDENCE—CONSTRUCTION OF LANGUAGE OF WRITTEN CONTRACT— TECHNICAL TERMS.

Oral evidence is admissible to prove the meaning of words used in a written contract where they have a special or technical meaning in the connection in which they are used, and where it is shown that the parties to the contract were familiar with the words and the sense in which they are employed.

7. SALES—CONTRACTS—CONSTRUCTION.

A written order for goods recited "Enter order for 1,000 net ton of bar iron," at a price specified—"half card extra." "Specifications to be furnished during the balance of the year." The order was accepted in writing. The evidence showed that the words "bar iron" and "half card extra" referred to a certain base size and prices for bar iron. The words "card extra" referred to a list of prices stated on a card, well known to the trade, and which stated the extra charges of bar iron, which was above the base size, and the words "half card extra" meant one-half of the extra charges stated on the card of prices. Held, that the contract in view of the evidence was mutually binding on both parties, specifically stating the quantity, kind, and price of the goods sold, and the refusal of the buyer to specify and accept the goods in conformity with the contract was a breach thereof.

Appeal from St. Louis Circuit Court; Daniel G. Taylor, Judge.

Action by the Moran Bolt & Nut Manufacturing Company against the St. Louis Car Company. From a judgment for plaintiff, defendant appeals. Affirmed.

The plaintiff sued the defendant in the circuit court of the city of St. Louis to recover some $10,000. The petition contained three counts. The first was predicated upon the following written contract, whereby the defendant purchased of plaintiff 1,000 tons of bar iron, to wit: "Order No. 22,917. St. Louis Car Company, St. Louis, Mo., 6/3/03. To Moran Bolt & Nut Mfg. Co.: Please furnish this company with the following material and ship same to ______. Enter our order for 1,000 net ton of bar iron at $1.70 per 100 lbs., f. o. b., our works, half card extra. No charge for cutting to length 5 feet or over. Specifications to be furnished during the balance of the year. Terms 30 days net from date of arrival of material. Yours very truly, St. Louis Car Co., By Abe Cook, Pur. Agt."

Letter of acceptance: "St. Louis, June 10, 1903. St. Louis Car Company, City—Gentlemen: We are pleased to acknowledge receipt of your contract of June 3d for 1,000 tons bar iron, order No. 22,917. We are also in receipt of your order No. 22,944, for, estimated, 98,000 pounds of iron. We forward this order to the mill with the request to make prompt shipment. Respectfully yours, Moran Nut & Bolt Manufacturing Co." It was further alleged that under this contract plaintiff delivered to defendant a total amount of 961,550 pounds, and judgment was sought for the balance due on account of the material so delivered.

The second count was for damages because of the failure and refusal of the defendant to specify, accept, and receive the balance of 1,038,450 pounds of bar iron covered by the above contract. The third count was for a balance due on account of bolts and nuts sold to the defendant. The defendant's answer was a general denial and a cross-bill, wherein it set up that on the 3d day of June, 1903, it entered into a contract with the plaintiff, which as written was of the purport set out in the petition; that that contract was negotiated with one Fletcher as the agent of plaintiff, and that thereafter that defendant delivered to the plaintiff certain merchandiseing the agreement between plaintiff and defendant paid for everything it purchased from plaintiff except the sum of $3,171.38, which was tendered to plaintiff on the 9th day of February, 1904; that the writing constituting the agreement between plaintiff and defendant was executed on behalf of the defendant by Abe Cook, who was the purchasing agent of the defendant, and that he had no power to bind the defendant by any such contract, and that the contract set out in that writing was not the agreement which was really made between said Cook and Fletcher, and praying that the written contract might be reformed in order to conform with the real agreement made so as to read as follows: "Enter our order for all or such part of one thousand net tons of bar iron as we may require between this date and the 31st day of December of the current year at $1.70 per one hundred pounds, f. o. b. our works, half iron card extra. No charge for cutting to lengths of five feet or over. Specifications to be furnished, as such iron is required during the balance of the year. Terms, thirty days net from date of arrival of material." The reply was a general denial. Counsel for plaintiff has made a correct, terse statement of the facts of the case as disclosed by the record, and we will adopt that statement, which is substantially as follows:

The equitable issues growing out of the defendant's cross-bill were tried by the court before the issues arising upon the plaintiff's petition were submitted to a jury. On the trial of the issue raised by the defendant in its prayer for the reformation of the written contract, Abe Cook was the defendant's only witness in chief. He testified that he understood that Mr. Fletcher was acting for plaintiff, and his impression was that Mr. Fletcher told him that defendant was not to be required to take out the whole amount of 1,000 tons mentioned in this contract, but that he had to have the contract in that shape because it was the customary way of making them out. He also said that from the wording of the contract he thought that it was dictated by his assistant, and that if the assistant did dictate it then he must have gotten the instructions as to its terms from the witness. The original order showed that it had first been addressed to John Coles & Co., and that afterwards the name of this firm had been scratched out and that of the Moran Bolt & Nut Manufacturing Company written in. Mr. Cook was in no way certain as to his conversations with Mr. Fletcher. The plaintiff showed that Mr. Fletcher was not in the employ of the plaintiff but was a broker working on commission; that he went to the St. Louis Car Company, and learning that they were in the market for a large tonnage of iron Mr. Cook told him that they would place an order for 500 tons. Mr. Fletcher went away, and inquired and came back to Mr. Cook and told him that he could not place the order for that amount, and that the tonnage would have to be increased. Although Mr. Cook demurred about giving an order for so much as 1,000 tons, yet he caused an order addressed to John Coles & Co. to be written, ordering 1,000 tons at $1.70. John Coles & Co. were millmen, and Mr. Fletcher took it to them and they refused it. Other mills to which Mr. Fletcher submitted the order refused to fill it, and finally he took it to Mr. Gorman, president of plaintiff, and the latter, after considering the matter, told Mr. Fletcher that if he would go back to the car company, and have the order changed so as to be addressed to plaintiff, they would take the business at $1.70. The market price at that time for that material was about $1.80. A few days after that defendant called plaintiff's attention to the fact that that order had not been accepted and requested its acceptance in writing, and thereupon Mr. Gorman, on behalf of plaintiff, wrote a letter formally accepting the order. After the contract was executed, the defendant specified out nearly 500 tons of the material, and every time a specification was given it purported to be at "price as per contract"; that there was very little specified out after the 1st of August, 1903, at which time the price of iron had declined considerably, towards the end of the year reaching as low a point as $1.20. During the fall the plaintiff on numerous occasions called the defendant's attention to the fact that they were not specifying out the iron according to the agreement, and urging upon them to do so, and in several instances calling their attention to the exact amount still remaining to be specified before December 31, 1903.

The court found against the defendant, and refused the relief asked by it for a reformation of the contract. Afterwards the cause came on for trial before a jury on the causes of action set out in the plaintiff's petition. On that trial the only real matter in dispute was the second count of the petition, and on that there is no substantial difference between the witnesses for the plaintiff and those of the defendant. The evidence of all the witnesses was to the effect that a number of years ago the National Association of Iron...