Siebring Mfg. Co. v. Carlson Hybrid Corn Co.

• Decision Date: 03 May 1955
• Docket Number: No. 49597,49597
• Citation: 70 N.W.2d 149,246 Iowa 923
• Parties: SIEBRING MANUFACTURING COMPANY, Appellee, v. CARLSON HYBRID CORN COMPANY, Appellant.
• Court: Iowa Supreme Court

Page 149

70 N.W.2d 149

246 Iowa 923

SIEBRING MANUFACTURING COMPANY, Appellee, v. CARLSON HYBRID CORN COMPANY, Appellant.

No. 49597.

Supreme Court of Iowa.

May 3, 1955.

Mallonee & Mallonee, Audubon, and Brody, Parker, Miller, Roberts & Thoma, Des Moines, for appellant.

Fisher & DeWaay, Rock Rapids, and H. Wayne Black, Audubon, for appellee.

WENNERSTRUM, Chief Justice.

Plaintiff brought an action at law wherein it sought to recover from the defendant claimed balance due on an account in the amount of $19,753.02. It had manufactured and delivered to the defendant company a large number of corn crib roofs. An original agreement had been entered into on or about the 26th day of August, 1949. The quoted price at that time was $60 each for an 18 foot 8 inch corn crib roof and $44.40 each for a roof 14 feet 8 inches in size. Plaintiff alleged this contract was modified on or about September 10, 1949 by an oral agreement wherein the price was increased to $72 and $50 each respectively. The defendant denied the claimed oral modification, contended this claimed modified contract was without validity, and was unenforceable because of the absence of any new consideration. The defendant thereafter counter claimed for damages basing its contentions on breach of warranty, a breach of the contract because of the late delivery of the roofs, and the further claim those furnished did not meet the requirements of the defendant. Upon trial the jury returned a verdict for the plaintiff in the amount of $17,529.34 with interest and costs. The defendant has appealed.

On July 23, 1949 the defendant wrote the plaintiff company a letter wherein inquiry was made whether they would be interested in manufacturing corn crib roofs for it. Thereafter Claude Siebring and his son, Owen, representing the plaintiff and Elmer Carlson, representing the defendant, met and discussed a possible arrangement and agreement. On August 23, 1949 the plaintiff wrote the defendant the following letter: 'We wish to confirm our telephone conversation of today, quoting a price of $60.00 each for the 18'8"' roof and $44.40 each for the 14'8"' roof. We ask that you please send in a confirmation order to cover the 2,000 roofs.' On August 26, 1949 the defendant company wrote a letter to the plaintiff as follows: 'This letter will confirm our order for 2,000 crib roofs, and we wish approximately, 1,000--18 ft. 8 in. and 1,000--14 ft. 8 in., but we will advise you of any change in ratio of the two sizes. The agreed price is $60.00 and $44.40 respectively, subject to 1% discount on each 1,000 or multiple thereof. We are unable to get delivery of 18 ft. 8 in. roofs for the 1,600 bushel crib. Please advise if the ones you have will be satisfactory for our immediate requirements. We will have to have some roofs not later than the 30 or 31 of this month. Advise immediately.' On August 29, 1949 the plaintiff replied to the defendant's letter as follows: 'We acknowledge with thanks your letter of August 26th which confirms your order for 1,000--18 ft. 8 in. and 1,000--14 ft. 8 in. crib roofs. We will certainly make every effort and ship according to your specifications. The stencil has been ordered and we hope we will receive it in due time. The one sample 14 ft. 8 in. roof is ready for shipment and is going out by express tomorrow. * * *'

On September 5, 1949 Claude Siebring wrote a letter to the defendant which stated: 'Really we do not know what to do about steel for corn crib roofs due to the steel strike. No mill steel is available and the black market price is so high, we cannot take it. We were promised some mill steel for September but now they have delayed shipping until October and we are not sure of that. With conditions of black market priced steel from nine to ten cents per pound, we will have to have at least $58.00 for our 16'18"' roofs and all other sizes accordingly. Our prices, however, are much less than any other manufacturing companies.'

And on September 6, 1949 plaintiff company wrote a letter to Mr. Elmer Carlson as follows: '* * * This is to confirm our telephone conversation with Mr. Huey today in which we quoted new prices on corn crib roofs. The prices to you are as follows: 14 ft. 8 in. roof @ $50.00 each, 18 ft. 8 in. roof @ $72.00 each. In view of present circumstances as outlined in our letter of September 5th, we find this increase in price necessary. We trust you will realize our position and accept them as stated. Yours very truly, Siebring Mfg. Company by Claude Siebring.'

Thereafter on September 10, 1949, according to the testimony of Claude Siebring he had a long distance telephone conversation with Elmer Carlson. The record concerning it is in part as follows: '* * * I told Mr. Carlson, we cannot deliver roofs at the price originally quoted. We have got to have the price as stated in our letter. And, I says, we will not load them, we can't ship them at any such a price; and Mr. Carlson told me, he says, Okay, ship the roofs, we will raise the price of our cribs. That was just what he said. Q. Do you recall whether or not any roofs were shipped then at that time? A. That day there were fifty roofs loaded--on the same day there were fifty roofs loaded on one of Mr. Carlson's trucks and they were taken to Audubon. Q. Was that before or after your conversation with Mr. Carlson? A. That was after the conversation we had, because I wouldn't load them till I knew that everything was okay.'

Mr. Elmer Carlson admits that he talked to Mr. Siebring on or about September 10, 1949. He does not deny making the statement that he would raise the price he would charge for the crib roofs. There is some substantiating testimony relative to the conversation between Mr. Siebring and Mr. Carlson. A Mr. E. M. Meneough who was doing advertising work for the Carlson Hybrid Corn Company testified he was in Mr. Carlson's office on or about September 10, 1949, and at that time he overheard Mr. Carlson's statements in a telephone conversation, and heard him tell the individual with whom he was conversing to go ahead and ship the roofs. Mr. Meneough also testified that previous to the telephone conversation he overheard he had visited with Mr. Carlson and had stated to him he should not advertise his cribs because of the threatened steel strike and that Carlson said: 'Hell no, I will raise the price on them and go ahead.'

I. The defendant claims as error the submission to the jury by the trial court of the issue of the oral modification of the original written contract. It is contended the claimed modification was unenforceable because it was not supported by a new consideration. The defendant company cited numerous authorities which it claims support the proposition that a written contract cannot be modified by a subsequent oral agreement, inconsistent with the written contract, unless the subsequent agreement is supported by a new consideration. Heggen v. Clover Leaf Coal & Mining Co., 217 Iowa 820, 823, 253 N.W. 140, and cases cited. However, there are certain facts which should be considered in connection with defendant's claim.

The original contract at the time of the claimed modification was executory. The parties had a legal right to rescind and abandon it by mutual agreement. Williams v. Cassidy, 237 Iowa 1042, 1050, 23 N.W.2d 423.

The question whether a recission had been proven was rightfully for the determination of the jury. 17 C.J.S., Contracts, § 628, p. 1292; Fenner v. Bolema Const. Co., 330 Mich. 400, 47 N.W.2d 662, 664.

Inasmuch as the matter of the claimed modification was for the determination of the jury and apparently it so decided we do not need to comment on the cases cited by the defendant relative to a written contract being changed by a subsequent oral agreement.

II. There is no necessity for a new consideration where a former contract has been modified. This is our holding in O'Dell v. O'Dell, 238 Iowa 434, 460, 26 N.W.2d 401, 414: 'Any dissolution * * * of any other executory contract may be effected by the mutual consent or agreement of the parties to do so. Lawful cause is not necessary. No new consideration is needed. The mutual release from the old contract is adequate consideration. * * *' See also Jones v. Haines, 117 Iowa 80, 82, 90 N.W. 518; Gorton v. Moeller Bros., 151 Iowa 729, 732, 130 N.W. 910; Richards v. W. H. Hellen & Son, 153 Iowa 66, 71, 72, 133 N.W. 393; Evans v. McKanna, 89 Iowa 362, 365, 56 N.W. 527.

And in Lamb's Estate v. Morrow, 140 Iowa 89, 97, 117 N.W. 1118, 1122, 18 L.R.A.,N.S., 226, we commented on the matter of consideration in a modified contract as follows: '* * * And as a general rule, the cancellation or...