Schaefer v. Fulton Iron Works Co., 25945.

CourtCourt of Appeal of Missouri (US)
Writing for the CourtMcCullen
Citation158 S.W.2d 452
Docket NumberNo. 25945.,25945.
Decision Date03 February 1942
158 S.W.2d 452
No. 25945.
St. Louis Court of Appeals. Missouri.
February 3, 1942.

Appeal from Circuit Court, St. Louis County; John J. Wolfe, Judge.

"Not to be reported in State Reports."

[158 S.W.2d 453]

Suit by Andrew L. Schaefer, doing business as Andrew Schaefer Supply & Wrecking Company, against the Fulton Iron Works Company to recover damages for breach of an implied warranty of title to personal property, wherein defendant filed a counterclaim. Judgment for the plaintiff, and the defendant appeals.

Judgment affirmed.

Lewis, Rice, Tucker, Allen & Chubb and Charles D. Glazer, all of St. Louis, for appellant.

Sylvan Agatstein, of St. Louis, for respondent.

McCULLEN, Judge.

This suit was instituted by respondent, as plaintiff, to recover from appellant, as defendant, damages for breach of an implied warranty of title to personal property arising out of a contract between said parties. A trial before the court and a jury resulted in a verdict and judgment in favor of plaintiff and against defendant in the sum of $1,361.30 and costs. After an unavailing motion for a new trial defendant duly appealed.

Plaintiff's petition alleged that, on September 18, 1937, by a contract in writing defendant sold to plaintiff a story and a half frame dwelling house known as 6215 Etzel Avenue in St. Louis County, Missouri, for the sum of $25 to be paid by plaintiff, and the removal by plaintiff of said dwelling house from the real estate upon which it was situated, at the cost of plaintiff; that subsequent to said sale defendant, by its warranty deed, conveyed the property to the General Electric Company, a corporation, well knowing that it had already warranted the title to said building to plaintiff; that, on October 8, 1937, the grantee in said warranty deed sold said frame building to one Edward Luhman and Frank R. Prendergast, doing business as Central Wrecking and Supply Company, a copartnership, for the purpose of having said partners wreck said building and remove it; that plaintiff, pursuant to his contract with defendant, on October 13, 1937, commenced the wrecking of said building not knowing of the sale of said property by defendant to the General Electric Company; that on October 22, 1937, when demolition of said building was almost completed, plaintiff was notified by said partners of the sale to them by the General Electric Company of said building; that plaintiff, relying upon his contract with defendant, completed the demolition of said building and the removal of the salvaged materials; that thereafter said partners filed suit against plaintiff in the Circuit Court of the City of St. Louis for damages, alleging the conversion of said building materials to which said partners claimed title; that plaintiff notified defendant that said suit had been filed against him and demanded of defendant that he be indemnified against loss, but defendant denied any liability to plaintiff; that the suit against plaintiff resulted in a verdict and judgment against him for $450 actual damages and $600 punitive damages; that plaintiff appealed said cause to the St. Louis Court of Appeals where the judgment was affirmed for the amount of the actual damages but a remittitur of the amount of the punitive damages was ordered and made; and that plaintiff paid the judgment for $450 with interest. Plaintiff prayed judgment against defendant in the total sum of $1,386.30, which included expenses alleged to have been incurred by him in the defense of his title to the property.

Defendant's answer admitted its ownership of the real estate mentioned; admitted that it sold the dwelling house thereon to plaintiff on September 18, 1937, for $25, and admitted that on October 7, 1937, it conveyed said property by warranty deed to the General Electric Company; then generally denied each and every other allegation in plaintiff's petition.

Further answering, defendant alleged that plaintiff did not proceed to remove the frame dwelling at once as required in the contract despite numerous requests that he do so and that he thereby breached said contract and lost all of his rights thereunder; that before plaintiff had proceeded to any material extent in the demolition, he was given notice that the real estate on which said dwelling was located had been conveyed by defendant to the General Electric Company; that notwithstanding said notice, plaintiff completed the demolition of said dwelling and the removal of materials, thereby causing the alleged damage he suffered. Defendant counterclaimed against plaintiff for $25 which it alleged plaintiff owed it under the contract.

The reply of plaintiff was a general denial coupled with allegations that he properly tendered said sum to defendant, which defendant refused to accept; and that any time for the performance of said contract was waived by defendant.

158 S.W.2d 454

Defendant's first contention that its demurrers to the evidence should have been sustained requires a review of the evidence.

Plaintiff was engaged in the wrecking business, and on July 17, 1937, received from defendant a letter requesting him to send a representative to defendant's place of business in regard to wrecking a small building. On June 23, 1937, plaintiff submitted to defendant a proposition, in writing, to wreck the frame building in question, the materials from said wrecking to become plaintiff's property, and plaintiff to pay defendant the sum of $25 for the privilege of wrecking the building. On September 18, 1937, plaintiff received from defendant a written order to proceed with the wrecking of the building, signed by R. E. Adams, its purchasing agent. This order was introduced in evidence as plaintiff's Exhibit C. Said order appears upon a printed form, evidently used by defendant in carrying on its general business. Some of the printed parts of it need not be set forth here as they clearly have no bearing on the order itself or the subject matter thereof. The material portions of said order are as follows:

 "The Fulton Iron Works Company
                 "1259 Delaware Avenue
                 "St. Louis, Mo., 9/18/37
                "Andrew Schaefer Supply & Wrecking Co.,
                "3600 Clarence Ave.
                "St. Louis, Missouri.
                 M. * * * * * *
                 "Please furnish the following described
                articles subject to conditions and instructions
                printed hereon:
                 "Wrecking, one story frame building located
                at 6315 Etzel Ave.
                 "Please start at once.
                 "You to pay us $25.00 for privilege of
                wrecking this property.
                 * * * * * *
                 "R. E. Adams,
                 "Purchasing Agent, L.B.
                 "Conditions and Instructions.
                 * * * * *

"6. We reserve the right to cancel this order if not filled within a reasonable time."

The evidence shows that plaintiff began to wreck the frame dwelling on October 13, 1937, and continued on with that work until October 28, 1937, when he was notified by Edward Luhmann that the building belonged to him; and then for the first time learned that on October 7, 1937, defendant had conveyed to the General Electric Company the real estate upon which the frame building was situated, and that the electric company had in turn given a contract for the wrecking of the building to Luhmann. Luhmann was one of the partners of the Central Wrecking and Supply Company. Plaintiff went ahead with the wrecking of the building and removal of the materials and thereafter, on November 12, 1937, plaintiff was served with summons in a suit against him brought by Luhmann, et al., doing business as the Central Wrecking & Supply Company. In that suit Luhmann, et al., recovered a judgment against plaintiff for damages, both actual and punitive. Plaintiff appealed said cause to this court where the $600 punitive damages was required to be remitted, which was done, whereupon this court remanded the cause to the trial court with directions to enter a new judgment for actual damages only in the sum of $450 and interest from October 13, 1938, the date of the original judgment. See Luhmann et al. v. Schaefer, Mo.App., 142 S.W.2d 1088. Thereafter, plaintiff paid the judgment of $450 with the interest thereon and brought this suit to recoup the losses sustained by him by reason of said suit.

Defendant argues that plaintiff breached and abandoned his contract by his failure to commence the wrecking of the building "at once", and also points out that plaintiff did not pay the $25 or offer to pay the same until after the suit had been filed against him by Luhmann, et al.; that the evidence was undisputed that plaintiff did not begin the wrecking of the building until October 13, 1937; that there were no ambiguities in the contract; and that it was the duty of the court to interpret and construe the written contract rather than the jury, and the court should have sustained defendant's demurrers to the evidence. Authorities are cited by defendant to support its contentions in this respect.

There can be no doubt about the correctness of the rule stated by defendant that it is the duty of the court to interpret and construe written contracts rather than the jury, nor can there be any question that the cases cited by defendant do declare and...

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4 cases
  • Equity Mut. Ins. Co. v. Kroger Grocery & Baking Co.
    • United States
    • Court of Appeals of Kansas
    • October 7, 1943
    ...J. S. 2; 6 R. C. L. 1036. (7) Investigation and defense expense was properly included in the judgment. Schaefer v. Fulton Iron Works Co., 158 S.W.2d 452. OPINION Shain, P. J. [175 S.W.2d 154] [238 Mo.App. 8] In this action the plaintiff seeks contribution from the defendants for monies paid......
  • Universal C. I. T. Credit Corp. v. State Farm Mut. Auto. Ins. Co., s. 25934
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    • Court of Appeal of Missouri (US)
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    ...title after having given notice to his seller that a third party is claiming adversely. Schaefer v. Fulton Iron Works Co., Mo.App., 158 S.W.2d 452; Roark v. Pullam, 207 Mo.App. 425, 229 S.W. 235, l.c. 237; Safeway Stores, Inc. v. L. D. Schreiber Cheese Co., D.C., 326 F.Supp. 504. See also W......
  • Koelling v. Ralph Anderson Lumber Co., 51285
    • United States
    • United States State Supreme Court of Missouri
    • July 12, 1965
    ...and cases cited; Ivester v. E. B. Jones Motor Co., Mo.App., 311 S.W.2d 109, 111; see also Schaefer v. Fulton Iron Works Co., Mo.App., 158 S.W.2d 452, 455; 46 Am.Jur. 578, Sales, Sec. 407; 77 C.J.S. Sales Sec. 377, p. 1323. This breach was at the instigation and direction of Leiweke under an......
  • Ivester v. E. B. Jones Motor Co., 29830
    • United States
    • Court of Appeal of Missouri (US)
    • March 4, 1958 defend, he is bound by the results of such litigation. 77 C.J.S. Sales Sec. 335, p. 1221; Schaefer v. Fulton Iron Works, Mo.App., 158 S.W.2d 452, loc. cit. 456; Thomas v. Ferriss, 113 Conn. 539, 155 A. 829, loc. cit. 831. It must therefore be concluded that the plaintiffs made a submissi......

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