The official Catalogue Co. v. American Car & Foundry Co.

• Decision Date: 30 October 1906
• Citation: 97 S.W. 231,120 Mo.App. 575
• Parties: THE OFFICIAL CATALOGUE COMPANY, Appellant, v. AMERICAN CAR AND FOUNDRY COMPANY, Respondent
• Court: Missouri Court of Appeals

97 S.W. 231

120 Mo.App. 575

THE OFFICIAL CATALOGUE COMPANY, Appellant, v. AMERICAN CAR AND FOUNDRY COMPANY, Respondent

Court of Appeals of Missouri, St. Louis

October 30, 1906

Appeal from St. Louis City Circuit Court.--Hon. Daniel D. Fisher Judge.

AFFIRMED.

Judgment affirmed.

H. A and C. R. Hamilton for appellant.

(1) A valid contract is formed, when a proposition made by one party, is accepted by the other to whom it is made. Neither party can withdraw from such a contract without subjecting himself to liability for the damage caused by the breach of contract. Lungstrass v. Ins. Co., 48 Mo. 201; Lungstrass v. Ins. Co., 57 Mo. 108; Lewis v Ins. Co., 61 Mo. 534; Lapsley v. Howard, 119 Mo. 489; Stone v. Pennock, 31 Mo.App. 544; Brown v. Smith, 113 Mo.App. 59. (2) Plaintiff's action is based on the contract and the evidence establishes a compliance by plaintiff with the terms thereof and a breach of said contract by defendant. The performance by plaintiff after defendant refused to perform, does not deprive plaintiff of its right to recover whatever damage it suffered; nor does it change the nature of its cause of action. Pub. and Eng. Co. v. Walker, 87 Mo.App. 503; Peck v. Metal R. & C. Co., 96 Mo.App. 212.

McKeighan & Watts for respondent.

The first count of plaintiff's petition, which is the only one in controversy in this appeal, is a suit for recovery of the price alleged to have been agreed upon between plaintiff and defendant, through their respective agents, for two pages of advertisement as per the order, such price being based, according to the first count of plaintiff's petition, upon full performance by it, the plaintiff, of the contract. The evidence, however, showed that before the plaintiff published its supplementary catalogue, and before it inserted the defendant's card (in lieu of copy of advertising matter), it was notified by defendant of cancellation of the order, with request that the same be not published. Under such circumstances the plaintiff was not entitled to recover the price agreed upon, as and for a full performance of the contract, but is only entitled to recover damages for non-performance, caused by a breach of the contract by the defendant, according to the evidence as it stood at the close of plaintiff's case. Pub. and Eng. Co. v. Walker, 87 Mo.App. 503; Peck & Co. v. Roofing & Corrugating Co., 96 Mo.App. 212; Cole v. Armour, 154 Mo. 333 (l. c. 350); Davis v. Bronson, 33 Am. St. Rep. 783 (N. D.); 33 Am. St. Rep. p. 791, note; Danforth v. Walker, 37 Vt. 239; Fireworks Co. v. Polites, 130 Pa. St. 536.

OPINION

BLAND, P. J.

--During the Louisiana Purchase Exposition period (1904), plaintiff, a corporation, had a concession granting it the right to publish and sell the "Official Catalogue of Exhibits," consisting of books containing a classified enumeration of the various displays on exhibition at said exposition, together with line and display advertising of said exhibitors, as contracted for. The defendant is also a corporation doing business in the city of St. Louis, Missouri. On March 5, 1904, J. F. Hilton, plaintiff's solicitor, secured the following order from defendant:

"The Official Catalogue Company:--

"This is your authority for inserting two pages of advertising in the supplementary catalogues of the Universal Exposition to be held in St. Louis, in 1904, for the following departments: Transportation, a total of two pages in one Department Catalogues, copy for which is hereto attached and for which we have accepted the attached draft for $ 400, the full amount of this contract, payment of draft to be a final release of all obligations under this contract. This contract must be returned with draft.

"Only the conditions stipulated on the contract will be recognized by the publisher. In case we neglect to furnish copy in time, you may use our business card. "Contract secured by

"J. F. HILTON, Agent.

"AMERICAN CAR AND FOUNDRY CO.

By JOS. H. AMES, Asst. to G. M."

A draft for four hundred dollars was attached to this order but it was not accepted or signed by defendant. On April 1, 1904, plaintiff, by letter, asked defendant to furnish matter for two pages of advertising matter to be inserted in the official catalogue. Answering this inquiry, on April 6, defendant wrote:

"We have decided not to make use of the special catalogue for the Transportation Department, and as explained to Mr. J. F. Hilton, with whom the arrangement was originally discussed, we wish to cancel the conditional order given for two pages in this catalogue.

"Will you kindly acknowledge receipt hereof promptly, advising that you have cancelled our order and that the matter is now fully understood.

"Yours truly,

"JOS. H. AMES, Asst. to G. M."

In answer to another request for matter to fill the two pages of space contracted for, defendant, on April nineteenth, addressed the following letter to plaintiff:

"Dear Sir:

"In reply to your letter of April 16th, I beg to say that we cannot comply with your request for copy of two pages of advertising, as, in accordance with our previous correspondence, we instructed you to cancel the conditional order given Mr. Hilton, and do not accept the reasons given in your letter of April 7th as sufficient for your not doing so. You certainly have not commenced printing and binding the catalogue and we have nothing to do with your arrangement for commissions.

"I hope to receive advice by return mail that you have cancelled our order in accordance with our instructions.

"Yours truly,

"JOS. H. AMES,

"Ass't to G. M."

Both of these letters were received by plaintiff. Some further correspondence was had between the parties, by which it appears that defendant insisted the contract was a conditional one and was not to become final until approved by the president and, in any event, it had cancelled the contract by its letter of April sixth. Defendant refused to furnish any advertising matter. Plaintiff, nevertheless, published defendant's business card, gotten up by itself, in its catalogue, in large display type. On one page was the following:

"AMERICAN CAR AND FOUNDRY CO.

St. Louis, U.S. A.

Exhibit in

PALACE OF TRANSPORTATION."

And on the other the following:

"AMERICAN CAR AND FOUNDRY CO.

St. Louis, U.S. A.

Exhibit in

PALACE OF TRANSPORTATION."

Plaintiff's evidence tends to prove that, prior to the reception of defendant's letter of April sixth, it had laid out its catalogue and set up in form the defendant's business cards "in dummy," as plaintiff terms it, intending to take out "the dummy" and insert such advertising matter as defendant might furnish.

The suit is bottomed on the contract. The breach alleged is failure of defendant to pay the contract price of four hundred dollars. At the close of plaintiff's evidence, the court instructed the jury that plaintiff could not recover, whereupon it took a nonsuit with leave. Plaintiff's motion to set aside the nonsuit and for new trial proving of no avail, it perfected its appeal to this court.

Mr. Bishop says, "the proposition is sound in principle, and sufficiently supported by authority,--though more or less may be found in the books against it,--that one party alone, with no consent from the other, who is in no fault, has, at law, the power--not to be exercised without liability for damages, but still the power--to rescind any executory contract." [Bishop on Contracts, sec. 837.] Further on, at section 841, the learned author says: "A party who receives from the other a notice of rescission is, while entitled to damages should it proceed from the other's mere pleasure or necessities, still not justifiable in allowing anything further to be done to bring needless expense. He is even to take affirmative action, of the interests growing out of the rescinded contract required."

In Danforth v. Walker, 37 Vt. 239 at 244, the court said: "While a contract is executory, a party has the power to stop the performance on the other side, by an explicit direction to that effect, by subjecting himself to such damages as will compensate the other party for being stopped in the performance on his part at any point or stage in the execution of the contract. The party thus forbidden cannot afterwards go on and thereby increase the damages of the other party."

In Davis v. Bronson, 2 N.D. 300, 50 N.W. 836, s. c., 33 Am. St. Rep. 783, it was ruled:

"A contracting party who has certain things to do under his contract, has no right to proceed to execute it after he has been notified that the other party to the contract will not stand by his compact; and the mere fact that the contract has been made with several joint contractors, while the refusal to perform has emanated from only one of them, does not not affect the operation of the rule. Hence, when one has agreed to erect a building for two persons who have bound themselves jointly to pay a certain sum for the work, but before entering upon the performance of the work, is notified by one of those persons that he will not carry out his part of the contract, the allowable and only proper course is to treat the contract as broken by both the joint...