TDV Transp., Inc. v. Keel
| Decision Date | 31 March 1998 |
| Docket Number | No. 72158,72158 |
| Citation | 966 S.W.2d 347 |
| Parties | TDV TRANSPORTATION, INC., Plaintiff/Respondent, v. Elmer KEEL and Laura Keel d/b/a Middle American Transports, Inc., Defendants/Appellants. |
| Court | Missouri Court of Appeals |
Dan Dildine, Troy, for defendants/appellants.
Thomas B. Burkemper, Troy, for plaintiff/respondent.
A truck owner, plaintiff TDV Transportation, Inc., recovered judgment following a bench trial against a carrier, named in the applicable documents as Middle American Transports, Inc., for rental charges on six trucks. It sought to avoid a liquidated damage provision covering cancellation without ten days notice, claiming anticipatory breach of contract. We conclude that the evidence fails to support the assertion of anticipatory breach. The judgment, therefore, is legally erroneous and is reversed. We of course accept the facts which the trial court might have found in support of its judgment.
On July 15, 1995 the parties executed six "Equipment Lease Contracts," each covering a separate vehicle. Under these agreements the owner provided six trucks with drivers to the carrier for operation on trips as directed by the carrier. The owner undertook to compensate the drivers and to pay operating expenses. The agreements were subject to cancellation by either party on ten days written notice. If the owner terminated the agreements without giving ten days notice the carrier was entitled to retain all monies then due to the owner as liquidated damages for loss of business and difficulty of obtaining replacements.
Compensation for the rental of each vehicle was set out in a document attached to the equipment lease. Although the leases provided that "each Middle American Terminal will have its own addendum" each document attached to the petition contains but one addendum and the several addenda appear to be identical. The documents call for a rate of 80 cents per mile for trips of 301 to 500 miles, with a fee of $30.00 for each stop for loading and unloading. Other rates are specified for trips of differing length but these are not in controversy. Despite the explicit provisions of the leases, however, it appears that a rate of 82 cents was paid for trips of 301 to 500 miles.
Under date of October 6, 1995 the carrier wrote the owner of changes in rates effective October 15, 1995. The letter stated that the 301-500 mile rate had been raised from 80 to 82 cents per mile because of higher fuel prices, which had since declined, and that there would be a return to the 80 cent rate specified in the lease documents. It also stated that the per stop charge was to be reduced from $30.00 to $25.00.
The owner responded to this notice by immediately giving notice of cancellation of the lease contracts and demanding the return of his trucks. The carrier complied, returning five trucks forthwith and the sixth when it returned from a trip. The owner then demanded payment of accrued charges under the lease contracts and sued when payment was not forthcoming.
In their first point the appellants argue that the judgment in favor of the owner for revenue which had accrued at the time of cancellation violated the liquidated damage provisions of the several contracts. The provision for liquidated damages for cancellation...
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