Moran Bolt & Nut Mfg. Co. v. St. Louis Car Co.
| Decision Date | 26 February 1908 |
| Citation | 109 S.W. 47,210 Mo. 715 |
| Parties | MORAN BOLT & NUT MANUFACTURING COMPANY v. ST. LOUIS CAR COMPANY, Appellant |
| Court | Missouri Supreme Court |
Appeal from St. Louis City Circuit Court. -- Hon. Daniel G. Taylor Judge.
Affirmed.
W. E Fisse for appellant.
(1) Under the evidence the finding and judgment upon the cross-bill should have been in favor of defendant. (2) The first and third instructions given by the court at the instance of the plaintiff are erroneous. (a) Both instructions are based upon the theory that the agreement in question amounted to a sale of certain and existing articles of merchandise, whereas the agreement was, in fact, for uncertain and unspecified merchandise, to be manufactured in the future. (b) The rule of damages set out and directed in the third count to be applied was erroneous. Since the agreement contemplated the future manufacture of the goods the measure of damages, at most, was simply the difference between the contract price of the manufactured articles at the place of delivery and the cost of manufacturing and delivering at that point. As plaintiff furnished no evidence of the amount of this difference it was not entitled to recover substantial damages. (3) The contract was wholly unilateral and became obligatory upon defendant only to the extent that its separate definite orders were accepted and complied with by plaintiff. (4) The subjectmatter of the contract was so vague and indefinite as to render the entire contract void except as, by action of the parties, it became definite and was fulfilled. Every action, however, taken towards rendering the general contract certain was merely the conclusion of new and separate agreements for specific quantities of ascertained merchandise. Hence, the fulfillment of specific orders, given by defendant, was not a performance of any general contract, but merely the fulfillment of separate and independent specific agreements. (5) The alleged agreement sued upon was a mere price list. (6) There was no consideration for the agreement to keep the price and terms open till January 1, 1904, and the agreement to keep the promise open for the designated period was not obligatory on either side.
Kinealy & Kinealy for respondent.
(1) The judgment of the court against appellant upon its cross-bill was correct. Meredith v. Holmes, 105 Mo.App. 343. (2) The contract here involved is amply sufficient to support an action for damages for its breach. Laclede Con. Co. v. Moss Tie Co., 185 Mo. 25; Green v. Higham, 161 Mo. 333; Black River Lumber Co. v. Warner, 93 Mo. 374; Rhodes v. Holladay-Koltz Co., 105 Mo.App. 279; Am. Linseed Co. v. Eberson, 104 S.W. 121; Nelson v. Hirsch, 102 Mo.App. 498. (3) The court correctly instructed the jury as to the measure of damages. Warren v. Mayer Mfg. Co., 161 Mo. 112; Bank v. Ragsdale, 171 Mo. 168; Black River Lumber Co. v. Warner, 93 Mo. 374; Range Co. v. Mercantile Co., 120 Mo.App. 438.
The plaintiff sued the defendant in the circuit court of the city of St. Louis to recover some ten thousand dollars. The petition contained three counts. The first was predicated upon the following written contract, whereby the defendant purchased of plaintiff one thousand tons of bar iron, towit:
Letter of Acceptance.
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 the defendant delivered to the plaintiff certain merchandise falling within the contract, and that the 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:
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 one thousand 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 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 Moran Bolt and Nut Mfg. Co. 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 Co., learning that they were in the market for a large tonnage of iron, and Mr. Cook told him that they would place an order for five hundred 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 a thousand tons, yet he caused an order addressed to John Coles & Co. to be written ordering a thousand tons at $ 1.70. John Coles & Co. were mill men 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 five hundred 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 first 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.
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