Pet Milk Co. v. Boland, No. 13815.

• Court: United States Courts of Appeals. United States Court of Appeals (8th Circuit)
• Writing for the Court: GARDNER, , and RIDDICK and COLLET, Circuit
• Citation: 175 F.2d 151
• Parties: PET MILK CO. v. BOLAND.
• Docket Number: No. 13815.
• Decision Date: 17 June 1949

175 F.2d 151 (1949)

PET MILK CO.
v.
BOLAND.

No. 13815.

United States Court of Appeals Eighth Circuit.

May 24, 1949.

Rehearing Denied June 17, 1949.

175 F.2d 152

Roland F. O'Bryen, St. Louis, Mo. (Fred L. Williams, Robert F. Schlafly and Charles S. Baumgarten, St. Louis, Mo., were with him on the brief), for appellant.

Roberts P. Elam, St. Louis, Mo. (John S. Leahy, St. Louis, Mo., and Joseph L. Badaracco, University City, Mo., were with him on the brief), for appellee.

Before GARDNER, Chief Judge, and RIDDICK and COLLET, Circuit Judges.

COLLET, Circuit Judge.

This action is to recover on quantum meruit for a balance alleged to be due appellee plaintiff for the construction of a sewer line for appellant defendant at the latter's Siloam Springs, Arkansas, plant. The controversy in the trial court and about which this appeal is concerned revolves around the question of whether a certain written "Purchase Order" submitted to plaintiff and signed by his representative, his son, represented the agreement between the parties or whether an oral agreement, varying in one important respect from the written purchase order, constituted the contract. There was a jury verdict for the plaintiff for $30,023.78 and interest for which judgment was given. After unsuccessful motions for judgment for defendant notwithstanding the verdict or for a new trial, this appeal followed. Generalizing the defendant's contentions, it asserts that (a) the written purchase order constituted the contract between the parties and that parol evidence of conversations and understandings had prior to and contemporaneously with its execution, which were admitted as evidence, violated the parol evidence rule, (b) that the parol agreement asserted by plaintiff constituted a modification of the alleged written contract for which modification there was no consideration, and (c) that the court's charge was erroneous. The facts necessary to an understanding of these issues follow.

Plaintiff, a contractor, was engaged in the performance of another contract for defendant at Siloam Springs, Arkansas, in the fall and winter of 1943. Early in January, 1944, defendant's construction superintendent at Siloam Springs suggested to plaintiff that he bid on the construction of a fifteen-inch sewer line which was to constitute a part of defendant's Siloam Springs plant. Under date of January 18, 1944,

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plaintiff submitted a written proposal to defendant to construct the sewer line and a water line. In that proposal plaintiff offered to perform the necessary earth trench excavation at $1.75 per cu. yard and the rock excavation at $20 per cu. yard. The above-mentioned invitation and proposal led to further negotiations in which defendant's construction superintendent furnished plaintiff's son with a profile of the sewer project. Plaintiff made a further written proposal, dated February 16, 1944, in which he offered to perform the earth excavation, characterized as "machine excavation," at $2.25 per cu. yard and the rock excavation, designated as "excavation, blasted," at $15 per cu. yard. The estimated yardage of earth excavation was stated in the February 16 proposal. No estimate of the amount of rock excavation was given. At that time the approximate amount of rock to be encountered was unknown by either party. These proposals naturally included other details incident to a construction project of that nature, but since the present controversy involves only these items, brevity suggests the exclusion of the non-controverted items from present consideration. On February 16, 1944, plaintiff's son (who at all times represented plaintiff) met defendant's purchasing agent and engineer at defendant's office in St. Louis. Plaintiff's evidence is that at the February 16 meeting defendant's purchasing agent was contending that the trench need not be more than 24 inches in width, while plaintiff's son was insisting that it should be wider because 24 inches was too narrow for safety and that the machine with which the work was to be done cut a trench 42 inches in width. His evidence was to the effect that a compromise was reached on a 33-inch trench, but with no specific agreement as to the method of calculating the necessary amount of earth to be removed and compensated for in the construction of a trench of that width and the depth required (at some places as deep as sixteen feet). Because of the urgency of the need for the sewer by defendant, it was agreed that plaintiff would commence work immediately and the details of the contract be worked out later. It was also agreed that the work could and would be completed within 45 days or by April 15, 1944. Plaintiff did commence the work on February 22, 1944. Shortly thereafter defendant mailed to plaintiff a written purchase order in which the proposed unit prices, as submitted by plaintiff, were fixed at $2.25 per cu. yard for machine excavation and $15 per cu. yard for blasted excavation. With respect to the method of computing the amount of material excavated for which compensation should be made, the purchase order provided that

"The cubic yards of all excavation for the 15-inch tile sewer line is to be figured on the basis of a trench 33 inches wide multiplied by the average depth and by the length of the trench through the cut."

It is clear from all the evidence that such a method of calculating the yardage removed, referred to as the "pay line width" method, contemplated the assumption of an arbitrary width of 33 inches regardless of whether the actual width of the trench was more narrow or wider than 33 inches. Plaintiff objected to that method of computation, and on March 10 and 11, 1944, wrote defendant two letters, the substance of which was that the assumption of a trench 33 inches in width for all "earth excavated trenches" was satisfactory, but that the amount of excavation to be compensated for should be the amount necessarily excavated in the construction of the trench, to be "determined from the final profile by a cross sectioning method."¹ On April 5, 1944, plaintiff wrote

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defendant stating that unexpected blasting of rock had been found necessary and requested that 80 cents per cubic yard be considered as compensation for the cost of the removal and replacement of the additional earth excavation made necessary by the blasting of a "V" shaped trench.² Two other objections to the purchase order were made in the March 10 letter which are not now material. Thereafter defendant sent plaintiff another purchase order, dated February 18, 1944, in which the two corrections last above noted were made, but retaining the pay line width clause with an inconsequential change of words.³ The work continued, and about the middle of April defendant's construction superintendent asked plaintiff's son why the purchase orders had not been signed. He was informed that plaintiff's letters of March 10 and 11 and April 5 had not been answered, and since the conditions were different than anticipated, plaintiff was reluctant to sign the purchase orders as written. The construction superintendent suggested that plaintiff's son call defendant's St. Louis office concerning its failure to answer the letters. That was done, and at defendant's purchasing agent's request plaintiff's son went to St. Louis on April 26 and saw Mr. Schwendener, the purchasing agent. Plaintiff's evidence is that at that conference plaintiff's son stated that plaintiff would like to be paid for the work done and wanted an understanding so that they could be paid; that he and Mr. Schwendener agreed upon the unit prices stated in the purchase order; that they agreed that the pay line width of 33 inches should apply to earth excavation; that he refused to sign the purchase order unless the conditions stated in the letters of March 10 and 11 and April 5 applied to rock excavation; that he was then assured by Mr. Schwendener that since the time fixed in the purchase order for the completion of the work had already expired (it was dated February 18, 1944, and called for completion within 45 days or not later than April 15, 1944), if it was signed it would serve only as a notation of the unit prices to be paid and that plaintiff could then send in estimates of quantities in accordance with those unit prices and be paid; that Mr. Schwendener said that the signing of the purchase order was necessary in order that the payments could go through defendant's regular routine. Plaintiff's son testified that it was with those understandings he signed the purchase order on April 26, 1944. The purchase order contained a clause that it was understood and agreed that "the acceptance of this order shall constitute a contract between Pet Milk Company, Owners, and the John V. Boland Construction Co., Contractor, of St. Louis, Missouri, for the faithful performance and completion of this work to our satisfaction". It did not contain any provision relative to the time or method of payment

An estimate of work done was submitted April 30, 1944, and another on May 31, 1944. These estimates contained, among others which are not in dispute, items for earth excavated trenches computed by the

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pay line width method. They also included an item for rock blasting excavation in which the actual amount of rock from the "V" shaped trench, calculated by the cross-section method, was charged for. Also included in these estimates was an item representing the actual amount of earth removed in performing the rock excavation at 80 cents per cu. yard. These estimates were not paid. The work progressed until after several inquiries by plaintiff as to the reason for non-payment with no response, an inspection of the job by defendant's engineer, and a threat by plaintiff that if payment was not made he would stop the work, defendant's engineer who made the inspection wrote plaintiff under date of June 23, 1944, to the effect that since the amount of rock...