Mt. Vernon Car Mfg. Co. v. Hirsch Rolling Mill Co

• Decision Date: 20 December 1920
• Docket Number: No. 21430.,21430.
• Citation: 227 S.W. 67,285 Mo. 669
• Parties: M. VERNON CAR MFG. CO. v. HIRSCH ROLLING MILL CO.
• Court: Missouri Supreme Court

227 S.W. 67

285 Mo. 669

M. VERNON CAR MFG. CO. v. HIRSCH ROLLING MILL CO.

No. 21430.

Supreme Court of Missouri, Division No. 2.

December 20, 1920.

Rehearing Denied December 30, 1920.

Appeal from St. Louis Circuit Court; Wilson A. Taylor, Judge.

Action by the Mt. Vernon Car Manufacturing Company against the Hirsch Rolling Mill Company. From judgment for plaintiff, defendant appeals. Reversed, and cause remended.

A. L. Hirsch, Abbott, Fauntleroy, Cullen & Edwards, and Owlet.. & Hay, all of St. Louis, for appellant.

Alroy S. Phillips and Bryan, Williams & Cave, all of St. Louis, for respondent.

WHITE, C.

The plaintiff obtained a verdict against defendant in the circuit court of the city of St. Louis, in the sum of $27,060, for a breach of contract, and the defendant at the same time obtained a verdict against plaintiff upon a counterclaim, also for a breach of contract, in the sum of $12,720, resulting in a net judgment for the plaintiff against the defendant of $14,340. The defendant alone appealed.

Plaintiff was a corporation engaged In the manufacture of railroad cars at Mt. Vernon, Ill. The defendant was a Missouri corporation manufacturing bar iron in the city of St. Louis. In September and October, 1916, the plaintiff and defendant began negotiations looking to a contract for the sale by defendant to plaintiff of bar iron, and the purchase from plaintiff by defendant of scrap iron. In defendant's first letter to plaintiff, September 26, 1916, it suggested "an exchange contract." In a letter of October 2, 1916, defendant spoke of a telephone conversation relating to an order by the plaintiff for bar iron and again mentioned a proposed arrangement as an "exchange for scrap." Subsequent letters passed between the parties in which the scrap was mentioned, always in connection with the bar iron, and to be shipped before the date of shipment of the bar iron; and each letter mentioning the amounts of bar proposed to be shipped by defendant to plaintiff suggested an equal tonnage of scrap iron to be shipped by plaintiff to defendant. Finally, after a telephone conversation in which the parties seemed to reach an understanding, letters were exchanged October 30, 31, and November 1, 1916, as follows:

                                 "Mt. Vernon, Ill., Oct. 30, 1916
                

"Hirsch Rolling Mill Company, St. Louis, Mo. —Gentlemen: In accordance with our understanding on the telephone today between the writer and your Mr. Marcus A. Hirsch, we have purchased from you 1,000 tons of merchant bar iron, to be made to Baltimore and Ohio specifications, for delivery "during March and April of next year, specifications to be furnished in approximately 30 days from this date, at a price of $2.25 per 100 lbs. f. o. b. St. Louis.

"We are to sell you 1.000 tons of steel scrap shearings and punchings at $16 per gross ton, delivered at St. Louis, the scrap material to be shipped along as we accumulate it from time to time, completing same about the first of April next year. We have several tons on hand that we can load out now and we will load one car of shearings and one car of punchings in order that you may see the character of scrap you are going to get.

                   "Yours truly,    R. K. Weber
                "RKW/SH                   Vice Pres."
                           "St. Louis, Mo., Oct. 31, 1916
                

"Mr. R. K. Weber, Pur. Agt. Mt. Vernon Car Mfg. Co., Mt. Vernon, Ill.—Dear Sir: This confirms sale made to you over phone yesterday of 1,000 tons of bar iron at $2.25 per cwt. base as well as purchase from you of 1,000 tons of steel scrap at $16 per gross ton all f. o. b. cars our works St. Louis, and we await your orders to cover.

"Thanking you kindly for the business and trusting that this is only the beginning of a large and satisfactory business, between us, we are,

                     "Yours very respectfully
                            "Hirsch Rolling Mill Company
                       "Marcus A. Hirsch, Pres. & Gen. Mgr.
                "MAH.CS"
                              "St. Louis, Mo., Nov. 1, 1916.
                

"Mt. Vernon Car Mfg. Co., Mt. Vernon, Ill. —Gentlemen: We have yours of the 30th ult., which just reached us and we have accordingly entered your order for 1,000 tons of merchant bar iron for shipment in March and April of 1917, specifications to be furnished about 30 days from date, at $2.25 per cwt. base f. o. b. cars our works St. Louis. We will thank you for specifications as soon as possible.

"We have also entered purchased from you of the 1,000 tons of steel scrap shearings and punchings at $16.00 per gross ton f. o. b. cars our works. St. Louis, this scrap material to be shipped as fast as you accumulate it and to be delivered by the first of April, 1917.

"As you stated you have a few hundred tons now on hand, we would appreciate if you would load up a large car of each, of shearings and punchings, separated, so that we may see the character of the scrap, loading same in open cars, and consigning same to the Hirsch Rolling Mill Co., Howard Station, Mo. Pac. Railroad, St. Louis.

"Thanking you for the business and soliciting your further favors and orders, we are,

                      "Yours very respectfully,
                             "Hirsch Rolling Mill Company,
                        "Marcus A. Hirsch, Pres. & Gen. Mgr.
                "MAH.CS"
                

In February, 1917, by an exchange of letters the contract was modified so as to provide for the delivery of 1,050 tons of bar iron by the defendants to the plaintiff, and a delivery by the plaintiff to the defendant of 1,050 tons of scrap, at the prices mentioned in the previous correspondence.

It will be noticed that the plaintiff was to complete the delivery of the scrap material to the defendant by the 1st of April, 1917, at $16 per gross ton, and the defendant was to ship the bar iron in March and April, 1917, at $2.25 per cwt. The plaintiff failed to comply with its contract; it shipped to the defendant prior to the 1st of April, 1917, only 414 tons of scrap iron; at that time the defendant had shipped to plaintiff only 30 tons of bar iron. Later the time for complete delivery of the bar iron was extended to June, 1919. The plaintiff, April 13, 1917, sent a statement to the defendant showing $6,594.55 as the amount due for scrap at that time shipped, and giving a credit of $1,336.05 for bar iron received, leaving a balance of $5,258.50, which the defendant then claimed to be due.

The plaintiff declared upon the contract mentioned shown by the letters of October 30, 31, and November 1, 1916, as modified in February, 1917. The petition alleges that the defendant agreed to sell and deliver to the plaintiff, during the months of March and April, 1917, 1,000 tons of bar iron at the price of $2.25 per cwt., said bar iron to be made according to the Baltimore & Ohio Railroad Company's specifications; that the plaintiff later sent orders to the defendant specifying amounts, sizes, and quantities of iron required; that the orders so sent were accepted by defendant; that later, in February, 1917, the contract was modified increasing by 50 tons the amount of bar iron to be delivered; that later the time for delivering the iron was extended to not later than July, 1917. The petition then alleges that the plaintiff performed all the conditions of said contract; that the defendant failed and neglected to perform the same, and failed to deliver 902 tons of the bar iron required by the terms of the contract, whereby the plaintiff was damaged in the sum of $40,590, for which it asked judgment.

The petition does not mention the obligation of the plaintiff to deliver the scrap provided for in the contract.

The answer alleges that the contract was entered into October 30, October 31, and November, 1916, and contained the terms mentioned in the letters of those dates, which included the obligations of the plaintiff to deliver "1,000 tons of scrap, shearings, and punchings by April 1, 1917; admits orders and specifications were sent by the plaintiff to the defendant designating the kind and amounts of iron demanded at certain and specific dates; admits the modification of the contract in February, 1917, increasing by 50 tons the amount of bar iron to be delivered. The answer then denies that plaintiff had complied with its contract; denies certain specific allegations relating to the delivery as alleged in the petition; alleges the contract was conditioned on delays by strikes and lockouts, and that a strike occurred in defendant's works in May, 1917; denies that the defendant had failed to deliver 902 tons of bar iron as alleged in the petition, and denies defendant had been damaged in the sum alleged.

The answer then alleges that after the plaintiff had shipped a portion of the scrap which, according to the contract, it was under obligation to ship, a dispute arose between the plaintiff and defendant as to the meaning of the contract and what were the obligations and duties of the plaintiff and of the defendant, respectively, under it, and in order to settle all disputes growing out of the contract or its modifications the plaintiff and defendant, on or about June 21, 22, 23, 1917, as evidenced by letters and telegrams of those dates, agreed between themselves that as soon as empty cars could be procured for loading the iron which defendant had on hand in defendant's yard, and which had been inspected by the Baltimore & Ohio Railroad Company, amounting to about 500 tons, it would be invoiced to the plaintiff at $2.25 per cwt., f. o. b. St. Louis, Mo., at defendant's works, "if the said plaintiff would ship the defendant at the same time in exchange an equal tonnage of steel scrap, shearings, and punchings, at $16 per gross ton, f, o. b. defendant's works, St. Louis; to all of which defendant alleges that said plaintiff and defendant did then and there agree, and the said plaintiff and defendant did also agree that the same was to settle all matters and disputes which then and there existed between the said plaintiff and defendant, and the defendant alleges that said last-named agreement was to and did take the place of all other and prior...