Standard Fireproofing Co. v. St. Louis Expanded Metal Fireproofing Co.

• Decision Date: 17 November 1903
• Parties: STANDARD FIREPROOFING COMPANY v. ST. LOUIS EXPANDED METAL FIREPROOFING COMPANY, Appellant
• Court: Missouri Supreme Court

76 S.W. 1008

177 Mo. 559

STANDARD FIREPROOFING COMPANY v. ST. LOUIS EXPANDED METAL FIREPROOFING COMPANY, Appellant

Supreme Court of Missouri, Second Division

November 17, 1903

Appeal from St. Louis City Circuit Court. -- Hon. Franklin Ferris Judge.

Affirmed.

Carr & Carr for appellant.

(1) The second defense to the first cause of action states a complete contract fully performed on one side. Thus it is taken out of the statute of frauds. Dozier v. Watson, 94 Mo. 328. The oral contract set up by defendant was not within the statute of frauds because it might have been performed within a year. It was not within the statute of frauds because the giving of a lower rate of royalty to another licensee is a definite act which determined the obligation of the parol promise and said act does not continue during the full term of the contract. (2) The recovery is limited to buildings which were erected prior to the date of filing the petition any subsequent breach of the contract must be specially pleaded. Van Hoozier v. Railroad, 70 Mo. 145; Benson v. Railroad, 78 Mo. 504; Brown v Railroad, 80 Mo. 457. (3) The second count is demurrable because it does not allege that the Golding system was available for use where other systems are alleged to have been used; consequently, there could have been no damage. Woodworth v. McLean, 97 Mo. 325; Albers v. Merchants' Exchange, 138 Mo. 166. (4) (a) Upon the face of the second count, the Johnson system is not within the contract; and this is a question of interpretation for the court and not of fact for the referee. Fruin v. Railroad, 89 Mo. 397; Railroad v. Rowley, 155 U.S. 625; Fond du Lac Co. v. May, 137 U.S. 395; Heald v. Rice, 104 U.S. 737; Powder Co. v. Powder Works, 98 U.S. 126. (b) And for the purposes of such interpretation, the court will take judicial notice of numerous facts concerning fireproof floorings. Richards v. Chase Elevator Co., 158 U.S. 299; Heaton Co. v. Schlochtmeyer, 69 F. 592; N. Y. Belting Co. v. N. J., etc., Co., 137 U.S. 445; King v. Gallun, 109 U.S. 99; Terhune v. Phillips, 9 Otto 592; Root v. Sontag, 47 F. 309; Wall v. Leck, 61 F. 291; Buckingham v. Iron Co., 51 F. 236. While the point probably has not arisen in the same form in the decisions of this court, the doctrine is found in the following cases: Goode v. McPherson, 51 Mo. 126; State v. Hayes, 78 Mo. 307; Globe Printing Co. v. Stahl, 23 Mo.App. 451. (5) The contract is void because the prohibition against defendant's using other systems is not limited either as to time or space. Wiggins Ferry Co. v. Railroad, 128 Mo. 244-245; Peltz v. Eichele, 62 Mo. 171; Wiggins Ferry Co. v. Railroad, 73 Mo. 389; Long v. Towl, 42 Mo. 545; Gill v. Ferris, 82 Mo. 156. (6) The rules governing the construction of the contract may be stated as follows: First, the issue of the Johnson patent raises a presumption that the Johnson system is not similar to the Golding system. Corning v. Burden, 15 How. 252; Blanchard v. Puttnam, 3 Fish. 186; Goodyear Dental Vulcanite Co. v. Gardner, 4 Fish. 224; Westlake v. Carter, 6 Fish. 519; Bank v. Imhaeuser, 2 Bann. & Ard. 465; Sargent Mfg. Co. v. Woodruff, 5 Biss. 444. Second. The word "similar" must be restricted to such systems as actually compete with the Golding system. Richardson v. Railroad, 149 Mo. 311. Otherwise the restraint would be unreasonable and void for the following reasons: (a) Because such restraint would be far greater than any protection of plaintiff would require. Long v. Towl, supra. (b) Because it would forfeit by implication defendant's right to use other systems in common with the public. (c) Because it would be contrary to public policy to prevent defendant adopting improvements. Wiggins Ferry Co. v. Railroad, supra. (d) Because it would work an unconscionable hardship on defendant by requiring it to abandon all business except an occasional contract for fireproofing a building. Richardson v. Railroad, supra. Third. The general words "for any purpose whatever" following the specific words must be limited to the same class therewith. Schulenberg v. Maguire, 42 Mo. 391; Grumley v. Webb, 44 Mo. 456; St. Louis v. Laughlin, 49 Mo. 559; Hubbard v. Burton, 75 Mo. 65; Johnson Co. v. Wood, 84 Mo. 489; St. Joseph v. Porter, 29 Mo.App. 605. Fourth. As for the "good faith" clause purporting to regulate the manner of building the Golding construction, it must be construed: (a) So as not to render other clauses surplusage. Standard Sewing Machine Co. v. Leslie, 78 F. 330. (b) So as to be consistent with other clauses. McCullock v. Holmes, 111 Mo. 445. Fifth. The practical interpretation adopted and followed by the parties will be adopted by the court. Patterson v. Camden, 25 Mo. 22; St. Louis Gaslight Co. v. St. Louis, 46 Mo. 129; Jones v. DeLassus, 84 Mo. 545; Scott v. Scott, 95 Mo. 318; Union Depot Co. v. Railroad, 131 Mo. 305; Thorn Wire Co. v. Washburn & Moen Co., 159 U.S. 423; District of Columbia v. Gallaher, 124 U.S. 505; Fox Solid Pressed Steel Co. v. Schoen Mfg. Co., 84 F. 545. Sixth. Where a contract is fairly open to two constructions, the one making it legal and the other making it illegal, the one making it legal should be adopted. Lamar Water Co. v. City of Lamar, 128 Mo. 188; Wiggins Ferry Co. v. Railroad, supra. (7) The general principle of damages is that the one suffering from a breach of contract should be compensated for actual loss, and such damage must be actually proved. Albers v. Merchants' Exchange, 138 Mo. 159; Hammond v. Beeson, 112 Mo. 197; Cincinnati Gas Co. v. Western Siemens Co., 152 U.S. 200. (a) Damages are not recoverable where the evidence shows that there would have been no advantage to plaintiff if the contract had been performed; that is, if the defendant had not used the Johnson system. Louisville Canal Co. v. Rowan, 4 Dana 606; Woodworth v. McLean, 97 Mo. 325; Cooke v. Barr, 39 Conn. 296. (b) In order for plaintiff to recover damages it is necessary for it to show that the defendant would have used the Golding system if it had not used the Johnson system. Express Co. v. Egbert, 36 Pa. 350; Tel. Co. v. Hall, 124 U.S. 444; Tel. Co. v. Crall, 39 Kas. 580; Mizner v. Frazier, 40 Mich. 592. (c) Comparative cost and other economical considerations are material facts; and there is no presumption that the patented system would have been used if the Johnson system had not been used. Dobson v. Dornan, 118 U.S. 18; Seymour v. McCormick, 16 How. 487; Cincinnati Gas Co. v. Western Siemens Co., 152 U.S. 206; Wiggins Ferry Co. v. Railroad, supra. (d) The royalty specified in the contract is not the proper measure of damages for a breach of stipulation not to use a system different from the patent system. The damages are the same for breach of contract of royalty as for infringement of patent. Boswell v. Dahlman, 68 Mo. 591; Cincinnati Gas Co. v. Western Siemens Co., supra. (e) Special damages must be specially pleaded and proved; and loss of royalty is not the direct result of a use of a different system, but at best only a special damage requiring the allegation of facts showing that a royalty would have accrued, except for the breach of contract. Steffin v. Railroad, 156 Mo. 322; Brown v. Railroad, 99 Mo. 310; State to use v. Blackman, 51 Mo. 320; O'Leary v. Rowan, 31 Mo. 119.

Charles B. Stark for respondent.

(1) The ruling excluding evidence of the oral agreement was correct (a) Parol evidence of contemporaneous or antecedent agreements is not admissible to change or vary a written contract, because the law conclusively presumes that all prior and contemporaneous negotiations and agreements were merged in the writing. Warren v. Mayer Mfg. Co., 161 Mo. 120; Tracy v. Iron Works, 104 Mo. 193; Boyd v. Paul, 125 Mo. 9; Rucker v. Harrington, 52 Mo.App. 481; Ringer v. Holtzclaw, 112 Mo. 523; Rollins v. Claybrook, 22 Mo. 406; Morgan v. Porter, 103 Mo. 135; Broughton v. Null, 56 Mo.App. 231; 1 Greenleaf Ev., sec. 87. (b) The rule which allows parol evidence to be adduced in aid of a written agreement applies only where the written agreement shows on its face that it is not a complete expression of the entire contract. Rollins v. Claybrook, 22 Mo. 405; Moss v. Green, 41 Mo. 389; Boyd v. Paul, 125 Mo. 9; Broughton v. Null, 56 Mo.App. 231; Norton v. Bohart, 105 Mo. 615. (c) The rule that where a written contract shows on its face that it is incomplete the omitted parts may be supplied by parol evidence, does not apply to contracts which the statute of frauds requires to be in writing. Warren v. Mayer Mfg. Co., 161 Mo. 121; Boyd v. Paul, 125 Mo. 9; Miller v. Goodrich, 53 Mo.App. 430; Ringer v. Holtzclaw, 112 Mo. 519; Carrick v. Mincke, 60 Mo.App. 140; Musselman v. Stover, 31 Pa. St. 265; Glass v. Hulbert, 102 Mass, 24; Moulding v. Prussing, 70 Ill. 151; Osborn v. Phelps, 19 Conn. 63; 1 Greenleaf Ev., sec. 86. (d) Part performance of a contract will not take it out of the statute so as to cause a variation of the above rules. Sharp v. Rhiel, 55 Mo. 97; Atwood v. Fox, 30 Mo. 500; Nally v. Reading, 107 Mo. 350. (e) The contract in suit by its terms was to continue "during the life of letters-patent" thereafter to be taken out "with any extensions or reissues of" the same. This is a contract "not to be performed within one year from the making thereof" within the purview of the statute of frauds. U. S. R. S. sec. 4884; R. S. 1899, sec. 3418; Atwood v. Fox, 30 Mo. 499; Sharp v. Rhiel, 55 Mo. 97; Nally v. Reading, 107 Mo. 355; Briar v. Robertson, 19 Mo.App. 66; Miller v. Goodrich, 53 Mo.App. 430. (f) The parol contract attempted to be set up is inadmissible as a defense for want of consideration. (2) It is proper practice for the referee to include in the account stated by him all items accruing prior to the time of stating the account. Rubber Co. v. Goodyear, 76 U. S. (9 Wall.) 800; 2...