Thos. Cusack Co. v. Lubrite Refining Co.

• Decision Date: 06 May 1924
• Docket Number: No. 18496.,18496.
• Parties: THOS. CUSACK CO. v. LUBRITE REFINING CO.
• Court: Missouri Court of Appeals

261 S.W. 727

THOS. CUSACK CO. v. LUBRITE REFINING CO.

No. 18496.

St. Louis Court of Appeals. Missouri.

May 6, 1924.

Appeal from St. Louis Circuit Court; H. A. Hamilton, Judge.

"Not to be officially published."

Action by the Thos. Cusack Company, a corporation, against the Lubrite Refining Company, a corporation. Judgment for plaintiff, and defendant appeals. Affirmed.

Cobbs, Logan & Alexander, of St. Louis, for appellant.

Taylor, Chasnoff & Willson and Hugo Monnig, Jr., all of St. Louis, for respondent.

DAUES, J.

This is an action to recover on a written contract. Plaintiff obtained a judgment aggregating, with interest, $1,416.25, and the defendant has appealed.

No point is made on the pleadings. Plaintiff alleges in his petition that it has faithfully complied with all of the terms of a certain contract set out in the petition. Defendant denies that plaintiff has complied with the contract. The contract, it appears, was entered into between the parties on August 24, 1921. In this contract plaintiff agreed to paint, exhibit, and maintain two advertising billboards in the city of Indianapolis, Ind. The defendant agreed to pay therefor the total sum of $2,700, in 12 equal monthly installments of $225 each. Defendant paid the plaintiff $1,325 on account of the contract, and this suit is for the balance of $1,416.25, with interest amounting to $41.25.

The dispute here is narrowed down to this proposition: No complaint is made by defendant that plaintiff did not comply with its part of the contract, except in this particular: In the contract the Lubrite Refining Company authorizes and directs plaintiff "to paint and execute an advertising display at locations and at prices per month as indicated below for Lubrite Refining Company as per design to be mutually agreed upon, in a first-class, workmanlike manner." That portion italicized by us is the foundation of this lawsuit. The defendant maintains that the plaintiff failed to introduce sufficient evidence at the trial to support the conclusion of the jury that the design was mutually agreed upon. Plaintiff, on the other hand, insists that there is substantial evidence in the record to support the verdict in this respect. The defendant further complains of error in the admission of evidence offered on behalf of plaintiff.

The first point, and the only one which we think is of a serious nature, is that the court erred in overruling defendant's demurrer to the evidence. In reviewing the record to determine the propriety of the court's action in this regard, we should keep in mind that the evidence should be given the most favorable consideration of which it is capable in support of plaintiff's case; all testimony supporting plaintiff's case and every reasonable inference therefrom in plaintiff's favor being taken as true. Scherer v. Bryant, 273 Mo. 596, loc. cit. 602, 201 S. W. 209; Maginnis v. Railroad, 268 Mo. 367, 187 S. W. 1165; Buesching v. Gas Co., 73 Mo. 219, 39 Am. Rep. 503.

We have examined the record to determine whether or not there is sufficient evidence from which the jury could properly infer that the design was mutually agreed upon between the parties to this contract. There was evidence for plaintiff through witness Meade that he was a salesman for plaintiff in the city of St. Louis in August, 1921, and that he took to defendant's office a proposed design for the advertising displays, which afterwards were painted, and that he submitted same to a Mr. Payne, who was sales manager for defendant, and that Mr. Payne expressed himself pleased with the design and stated that the design was so well drawn that he desired to have a copy made of it for his own office to show customers the kind of advertising which the defendant was going to display in Indianapolis. This witness further testified that the design was sent to Indianapolis to the office of the plaintiff. He identified Exhibit F as a correct imitation of the sign. On cross-examination, witness being asked whether or not the defendant had told him that the signs were not satisfactory and that it wanted a change made in same because they were not painted according to the design, said that he did not remember, but "that possibly could have been; those things happen in almost everything, and there are little changes made from time to time."

Witness Canfield, the manager of the Indianapolis office of plaintiff, testified that the signs erected in Indianapolis under the terms of this contract were painted under his direct supervision and in accordance with the design which he received from the St. Louis office of the plaintiff, and he also identified plaintiff's Exhibit F as a correct copy of the design. There is in evidence a letter dated September 16, 1921, introduced by plaintiff, in which the defendant wrote plaintiff, over the signature of Mr. Payne, asking for copies of the sign proposed to be erected in Indianapolis, and giving the reason for wanting same that defendant was about ready to start a national campaign on billboards and would like to have these copies for models to he copied elsewhere. The work, it seems, was to be done at stated periods; the signs to be repainted from time to time. Witness Canfield...