R-Way Furniture Co. v. Powers Interiors, Inc.

• Decision Date: 12 June 1970
• Docket Number: R-WAY,No. 33634,33634
• Citation: R-Way Furniture Co. v. Powers Interiors, Inc., 456 S.W.2d 632 (Mo. App. 1970)
• Parties: FURNITURE COMPANY, a Division of Franklin Industries, Inc., Plaintiff-Appellant, v. POWERS INTERIORS, INC., formerly Business Interiors, Inc., Defendant-Respondent.
• Court: Missouri Court of Appeals

Page 632

456 S.W.2d 632

R-WAY FURNITURE COMPANY, a Division of Franklin Industries Inc., Plaintiff-Appellant, v.POWERS INTERIORS, INC., formerly Business Interiors, Inc.Defendant-Respondent.

No. 33634.

St. Louis Court of Appeals, Missouri.

June 12, 1970.

Armstrong, Teasdale, Kramer & Vaughan, John J. Cole, Fred Leicht, Jr., St. Louis, for plaintiff-appellant.

Green & Lander, Clayton, for defendant-respondent.

SMITH, Commissioner.

This is an appeal from the action of the trial court in sustaining defendant's motion for new trial upon the basis that plaintiff's verdict-directing instruction in a contract case was erroneous.The jury found for plaintiff in the amount of $14,528.38.Plaintiff contends here that the court initially erred in not directing a verdict for plaintiff.We will first examine this contention.

Since the facts are somewhat complicated a brief statement of the gist of the controversy may be helpful.Plaintiff supplied a quotation to defendant for furniture, which quotation formed the basis of defendant's successful bid as a sub-contractor.After acceptance of defendant's bid it became obvious that plaintiff's idea of the construction of the furniture and the architect's idea were not the same.As the case was tried resolution of this difference of opinion was not attempted but it does form the background for the questions litigated.The furniture as eventually supplied, was in accord with the architect's ideas.The dispute between the parties on appeal is which of two purchase orders constituted the agreement between them, and the difference between the purchase orders lies in which party will bear the expense of conforming the furniture to the architect's wishes.

The litigation arose from the building of a dormitory by Centre College, Danville, Kentucky.Plans and specifications for that domitory were prepared by Murphy and Mackey, Inc., the architects, and were submitted to potential bidders.Plaintiff, located in Sheboygan, Wisconsin, is a manufacturer of furniture, including built-in dormitory furniture.Defendant and its predecessor were engaged in the business of purchasing and supplying furniture for business and institutional use, and is located in St. Louis.Defendant was interested in bidding on the built-in furniture for the Centre College dormitory and requested from plaintiff a quotation of prices for the furniture concerned.Plaintiff received the specifications, plans and addenda for the dormitory, including those covering the built-in furniture, which it examined before submitting its quotation to defendant.Plaintiff knew at the time of submitting its quotation in October, 1962 that defendant would use the quotation, if it were the lowest, in bidding on the Centre College job.Defendant received the subcontract for the dormitory furniture based on plaintiff's quotation.The quotation from plaintiff, although referred to frequently in the testimony, was not introduced as an exhibit.It did contain the words 'R-Way Standard Construction.'Thereafter, the precise time being unclear but in any event prior to April 1963, plaintiff submitted to the defendant and the architects its shop drawings for the furniture to be supplied.A conference ensued between the architect, plaintiff's salesman, and defendant's representative in which certain question concerning the shop drawings were raised.By letter of April 18, 1963, plaintiff's salesman posed these questions to plaintiff.For present purposes two sentences of that letter are relevant.Question 6 was: 'Metal base specified on the cases, appears to be wood on drawings.'Later in the letter appeared the following: 'The steel chassis is not in evidence on the drawings, and they brought this to my attention.'

Certain provisions of the specifications should at this time be noted as follows:

'3.MATERIALS

(i) Steel Frames: interior frames, chassis and exposed edge frames: 16 gauge cold rolled steel, including corner posts pilasters, parting rails, drawer center guides and other required members.

'6.PURNITURE

(a) Furniture shall conform to size and profile indicated on the drawings.Items shown in plan and elevation are Simmons 'Dorm Line' as manufactured by Simmons Company, Contract Division, Chicago, Illinois.Comparable items, conforming to size and profile, as manufactured by one of the following will be considered equal: R-Way Furniture Company, Huntington Furniture Company

(b) Wardrobe:

* * * Unit shall have steel base, firmly anchored to floor and freestanding type welded steel frame bolted to base which shall be anchored to adjacent room partitions for support.Enclosing panels: attached to steel frames with sheet metal screws from unit interior; * * *.'

R-Way standard construction includes metal frames in dressers, but does not include metal frames for wardrobes nor steel chassis.Plaintiff's evidence indicated its standard construction could be determined from its catalogue.Defendant's witnesses denied knowledge that meal frames in wardrobes were not standard construction of R-Way and testified that in examining R-Way's quotation of October prior to submitting its bid, the quotation was checked against the specifications but not against R-Way's catalogue.Defendant also produced evidence that plaintiff's St. Louis salesman in April, 1963 indicated that the omission from the shop drawings of the steel frames and chassis in all units was 'an oversight.'The architect testified that this was a 'custom' job which required adherence to the plans and specifications by the bidders regardless of what their standard construction was.He further stated that the 'comparable' provision of paragraph 6(a) related to appearance not to materials or construction, and that as to those matters the express specifications governed.He denied that any changes were made in the specifications after October, particularly none with regard to metal frames or chassis.

On May 14, 1963, defendant forwarded to plaintiff its purchase order for the built-in furniture a check representing ten per cent of the purchase price, and a cover letter.The prices contained in the purchase order were identical to those in plaintiff's October quotation.The cover letter contained the following: 'It is understood that this furniture be made as specified including steel frame and steel bases.We are enclosing the architect's (Murphy and Mackey) check list of items to be included in your revised drawings.'

Plaintiff kept defendant's check and furnished revised drawings to the architect, but no formal written acceptance or acknowledgment of the May purchase order was made nor does any express rejection appear.There was evidence that early in May, prior to the May purchase order, plaintiff told defendant it would not include or provide metal frames or chassis in the furniture.The plaintiff's holding of defendant's check was explained as: 'We held the money until it was affirmed that the shop drawings would be approved by the architect.'

Sometime after the May purchase order plaintiff and defendant entered into discussions regarding the steel frames and steel chassis.On July 3, 1963defendant's representative requested a copy of the shop drawings as corrected 'as we must have the steel wardrobe frames and the metal bases fabricated.'On July 22, 1963, plaintiff wrote defendant setting forth certain revisions of the furniture claimed to be required by the architects and setting forth increased prices for the furniture because of these changes.The last paragraph of the letter read: 'In order to proceed with the manufacturing of this furniture, we will require a revised Purchase Order with the prices on the attached sheet.'

The 'attached sheet' set forth the furniture to be furnished, with prices per unit higher than those in plaintiff's original quotation and the May purchase order.It also contained the following language:

'Lower section of wardrobe units shipped K.D. (knocked down) Price does not include metal interior framing, metal base or installation and hardware for installation of unit.

'Desk price includes metal legs and stretchers, but does not include metal base for drawer side section of desk.

'Metal base for chest not included in price.

'Hardware for installation and installation not included in prices.'

Defendant introduced into evidence a letter dated July 23, 1963 from an attorney representing Centre College, which called to the defendant's allention the promised delivery date of September 1, 1963, and the 'extremely large' damages to Centre College which would result from the inability to give occupancy to students who had already rented the rooms.By letter dated July 26, 1963, defendant forwarded to plaintiff a purchase order for the furniture required at the prices set forth in plaintiff's letter of July 22, 1963.On August 9, 1963, and again on August 13, 1963, plaintiff wrote defendant concerning the metal frames in the following language: 'This is to confirm our recent telephone conversation concerning the wardrobe interior frame on Centre College furniture.Per our conversation, your organization will ship these frames to R-Way and we are to install this frame work prior to shipment.Extra work for installation of this frame plus additional charge for transportation will be charged back to your organization.'

No written response was received in answer to these communications by plaintiff, but defendant did ship the frames to R-Way; they were installed by R-Way and the furniture was shipped and installed at Centre College.R-Way then sent its invoice to defendant, based upon the prices reflected in the July purchase order in the total amount of $35,278.90 less the down payment for a balance of $31,963.90.By debit memo of October 3, 1963, it also billed defendant $1,659.90 as additional charges for assembly of metal frames to wardrobes for a total billing of $33,623.80.On November 21, 1963defendant forwarded its check for...