Rogers v. Union Iron & Foundry Co.

• Decision Date: 19 July 1912
• Citation: 150 S.W. 100,167 Mo.App. 228
• Parties: WILLIAM A. ROGERS et al., Respondents, v. UNION IRON & FOUNDRY COMPANY, Appellant
• Court: Missouri Court of Appeals

150 S.W. 100

167 Mo.App. 228

WILLIAM A. ROGERS et al., Respondents, v. UNION IRON & FOUNDRY COMPANY, Appellant

Court of Appeals of Missouri, St. Louis

July 19, 1912

Motion for Rehearing Overruled October 15, 1912. [Copyrighted Material Omitted]

Appeal from St. Louis City Circuit Court.--Hon. William B. Homer Judge.

AFFIRMED.

STATEMENT.--Suit to recover damages for breach of two contracts for the sale of pig iron. The petition was in two counts. The trial was to the court, a jury being waived, and plaintiff had judgment on both counts of the petition and the defendant has appealed. As no point is made as to the pleadings, it is unnecessary to set them forth.

It appears from the evidence, which consisted partly of an agreed statement of facts, that on and prior to April 17 1907, and thereafter, the Sheffield Coal and Iron Company and the Napier Iron Works were corporations for pecuniary profit organized under the laws of Alabama and Tennessee respectively, and operating furnaces at Sheffield, Alabama, and Napier, Tennessee, respectively, at which places all their pig iron and other products were manufactured. Neither of them had ever done anything required of foreign corporations in order to be licensed to do business in Missouri, and neither of them had or kept any property, books, office or place of business in this State. The plaintiffs, a partnership under the firm name of Rogers, Brown and Company, were iron brokers, having a main office at Cincinnati, Ohio, and a branch office in St. Louis, Missouri. They were agents for the sale of pig iron and like products for forty furnaces, including those of the Sheffield Company and Napier Iron Works. As such agents they sold the entire foundry pig iron output of the Sheffield Company, and a large part of the foundry pig iron output of the Napier Iron Works. From their branch office in St. Louis, they sent out salesmen to travel about Missouri and other states, soliciting orders for said two corporations and other corporations which they were authorized to represent as sales agents. They were the only ones authorized to solicit orders in Missouri for said two corporations but they were not confined to Missouri in doing soliciting. They had general authority to make and execute contracts for said two corporations for the sale of their foundry pig iron output in Missouri and other States at prices previously quoted to them. They never made a sale not within such general authority, without first procuring specific authority to do so. They were compensated on a strictly commission basis, and paid their own office, traveling and other expenses, neither of said corporations contributing thereto. Sometimes they delayed shipments at the request of a customer and even cancelled contracts, but never without first communicating with their principal and obtaining specific authority to do so. All sale contracts were made by the plaintiffs in the names of their principals, and said corporations did all of their shipping from outside the State into Missouri and always shipped direct to the purchaser with whom the sale of the property had been negotiated before it arrived in Missouri. There were, however, some exceptional instances where iron was shipped to the plaintiffs on consignment, but none of those shipments ever came into Missouri until a purchaser had been procured for it and then it came into the State directly to the purchaser. There were also several instances of so-called "diverted shipments," that is, where a car of iron had been shipped into Missouri consigned to one to whom a sale of it had been previously negotiated, and when it arrived here, either in the railroad freight yard or at the foundry of the purchaser, the purchaser rejected it or the plaintiffs discovered that the purchaser was not "good pay." In such cases the plaintiffs had the car of iron delivered to some other person with whom a sale of iron of the same grade, etc., had been negotiated before this car had arrived in the State. The defendant is a Missouri corporation having a foundry and place of business in the city of St. Louis, Mo.

On April 17, 1907, in St. Louis, Missouri, the plaintiffs, by their salesman representative, Edward Gross, acting as agents under their general authority for the Napier Iron Works, solicited and made and executed a contract with the defendant for the sale to the defendant of 150 tons of Napier No. 2 Foundry Pig Iron, as follows:

"(Buyer will please sign and return this copy)

PIG IRON CONTRACT

No. 10297

Issued from the office of

Buyer's No.

ROGERS, BROWN & COMPANY

Furnace Agents.

SOLD TO

Union Iron & Foundry Company, St.

Louis, Mo.

QUANTITY

150 tons.

GRADE

Napier No. 2 Fdy.

PRICE

Per ton 2240 lbs. $ 22.25 del'd. f. o. b.

cars St. Louis. Subject to change of

freight rate.

PAYMENT

Freight cash by buyer. Balance, cash

30 days. Invoices will be sent and col-

lections made by Rogers, Brown &

Company, Cincinnati, O. If this lot

is divided in shipment, settlement

shall be made for each shipment as

though a separate sale. Failure to

make payments when due shall forfeit

buyer's right to further deliveries.

SHIPMENT

25 tons per month beginning July.

Subject to possible delay from strikes,

accidents, or other causes beyond the

reasonable control of the seller. This

contract is completely set forth herein.

ROUTE

Via.

ACCEPTED

THE UNION IRON & FOUNDRY COMPANY.

(Buyer please sign here)

W. J. Patchell, Pres.

NAPIER IRON WORKS,

Per Rogers, Brown & Co. Agents.

By Edw. Gross.

Received April 19, 1907.

Rogers, Brown & Co."

On April 25, 1907, in St. Louis, Mo., the plaintiffs by their same representative, acting as agents under specific authority for the Sheffield Company solicited, made and executed a contract with the defendant for the sale by the Sheffield Company to the defendant, of pig iron, which contract was the same as the Napier contract except that the quantity sold was 300 tons, the grade Sheffield No. 2 Foundry, the price per ton "$ 22.50 delivered f. o. b. St. Louis, subject to change in present freight rate $ 3.30." The shipment was to be 75 tons per month, September to December, and the route via L. & N. It, of course, was signed in the name of the Sheffield Company. The July 25 tons were duly delivered and accepted under the Napier Iron Works contract. On August 7, 1907, the defendant wrote the plaintiffs asking them to "please withhold shipment of iron covered by our contracts, until further notice." On August 8, 1907, the plaintiffs answered said letter, saying: "We are advising both the Napier and Sheffield furnaces to discontinue shipments on your contracts until further notice. We trust you will advise us in ample time when to resume shipments."

Mr. Gross, plaintiff's representative, testified on behalf of plaintiffs, that after these letters were exchanged, he called on Mr. Patchell, the president of defendant company, every two or three weeks asking for shipping instructions under the contract, but Patchell refused to give them, saying that he could not use the iron at that time and asking that the shipments be held up. On October 25, 1907, Patchell told him that he could not order forward any shipments at the present time, but would probably do it in December. On November 25, 1907, Patchell told him he could not use any more iron that year. Nothing was said at any of these times about new business, or about cancelling the contracts. On December 9, 1907, Patchell told Gross that the Sheffield Company had gone into the hands of a receiver. Such was the fact; on December 6, 1907, Benjamin Strong, Jr., was duly appointed receiver of the Sheffield Company by the circuit court of the United States for the District of New Jersey, a court of general jurisdiction, with authority to collect the debts of said corporation.

On December 14, 1907, defendant by its president, Patchell, wrote plaintiffs a letter as follows, this being, according to plaintiff's version, the first time cancellation of the contract was mentioned: "We herewith enclose our check for $ 1258.13, settlement in full of your account. Please acknowledge receipt. As we can see no immediate possibility of using or paying for any iron not now delivered on our contracts, you will please cancel same."

This letter and the check in it were received by the plaintiffs on December 16, 1907, on which day they answered it as follows: "We are pleased to acknowledge receipt of your check for $ 1258.13, settlement in full of your account. We are forwarding same to Cincinnati today. Referring to the last paragraph of your letter, it is impossible for us to cancel the unshipped tonnage on your contracts. The furnaces have the iron in stock and are willing to make shipment, but will not agree to cancellation. The furnaces are perfectly willing to extend deliveries on your contracts until the first quarter of 1908. We will be pleased to receive your shipping instructions so we can advise the furnaces just when you expect to take care of the iron."

The defendant received this last letter December 17, 1907. The check was for the exact amount due from the defendant for the July shipment under the Napier contract and for previous shipments under other contracts, with interest to date, and plaintiff's witnesses testified on cross-examination that they understood that that was all the check was tendered in settlement of, not that it was tendered in consideration of the cancellation of the contracts. Thereafter Gross saw defendant's president, Patchell, with reference to securing instructions for shipments under the contracts, but did not receive any. Patchell simply said that they could not use the iron, had iron in their yard, could not pay for more. On behalf of defendant, Patchell testified to the effect that...