Tnemec Co. v. North Kansas City Development Co.

• Decision Date: 09 April 1956
• Docket Number: No. 1,No. 44917,44917,1
• Citation: Tnemec Co. v. North Kansas City Development Co., 290 S.W.2d 169 (Mo. 1956)
• Parties: TNEMEC COMPANY, Inc., a Corporation, Respondent, v. NORTH KANSAS CITY DEVELOPMENT COMPANY, a Corporation, Appellant
• Court: Missouri Supreme Court

Page 169

290 S.W.2d 169

TNEMEC COMPANY, Inc., a Corporation, Respondent, v.NORTH KANSAS CITY DEVELOPMENT COMPANY, a Corporation, Appellant.

No. 44917.

Supreme Court of Missouri, Division No. 1.

April 9, 1956.

Motion for Rehearing or to Transfer to Court en Banc Denied

May 14, 1956.

John W. Oliver, Kansas City, Conn Withers, Liberty, Caldwell, Downing, Garrity & Eastin, Kansas City, Withers & Kizer, Liberty, of counsel, for appellant.

Robert E. Coleberd, Liberty, Richard K. Phelps, Independence, Lawson, Hale & Coleberd, Liberty, Thice, Phelps & Titus, Independence, of counsel, for respondent.

VAN OSDOL, Commissioner.

DefendantNorth Kansas City Development Company, a corporation (sometimes hereinafter referred to as 'Development Company'), has appealed from a judgment for plaintiff, Tnemec Company, Inc.(sometimes hereinafter referred to as 'Tnemec'), for $12,500 damages for loss of profits for the months of April and May, 1950.The loss is alleged to have been caused by defendant's failure to carry out an oral agreement relating to the paving of a segment of 23rd Avenue in North Kansas City.Upon this appeal, defendant-appellant contends, inter alia, that plaintiff failed to make out a case for the jury not only as to the alleged oral contract, but also as to proof of damages.

Plaintiff, Tnemec Company, Inc., is engaged and has been engaged since 1921 in the manufacture and sale of industrial paints and coatings, primarily for the preservation of metal, and, until the months of April, May, and June, 1950, had owned and used a plant on Roanoke Street in Kansas City.January 2, 1946, plaintiff entered into a contract to purchase from defendant a tract of land of about three acres lying south of 23rd Avenue and to the westward of Burlington Avenue in North Kansas City.DefendantDevelopment Company retained the ownership of lands lying between Burlington Avenue and the tract bought by plaintiff.It was stipulated in the contract that defendant was to cause a sewer to be constructed in 23rd Avenue to serve a plant or factory plaintiff contemplated building on the east end of its tract.The sewer serving plaintiff's (prospective) plant was to be connected with a sewer main in Burlington Avenue, which street is about one hundred seventy-five feet east of the east end of plaintiff's property.Defendant also agreed to install a water line; to install a fire plug; and to extend a switch track east of and along the east side and to a point even with the north line of plaintiff's property.It was further stipulated that Development Company'does not agree to pave or otherwise improve' 23rd Avenue, which street at that time was surfaced with cinders.

In September, 1949, plaintiff Tnemec decided to build its new plant.Its old plant had become inadequate in capacity for the manufacture and storage of its products.There were conferences between the officers of Tnemec and Development Company relating to the provisions of the contract of January 2, 1946, especially with respect to Development Company's obligations thereunder to install the sewer, water line, hydrant and switch track.For reasons immaterial here, plaintiff also became desirous that 23rd Avenue be properly paved.And in ensuing conversations and correspondence during the fall of 1949, it was tentatively agreed among plaintiff Tnemec, defendantDevelopment Company, and the Grinnell Corporation(Grinnell had its plant on lands owned by it north of 23rd Avenue) that 23rd Avenue was to be paved, the cost of the paving to be borne proportionally by plaintiff, defendant and Grinnell.

The alleged oral agreement, upon which plaintiff relies, was to the effect that plaintiff agreed to waive the construction of the switch track to the full length and extent of 253.77 feet to a point even with the north line of plaintiff's property, as in effect stipulated in the contract of January 2, 1946.The length of the switch track was to be reduced approximately fifty feet.In consideration of such waiver, defendantDevelopment Company was 'forthwith to take the reasonably necessary steps' to negotiate and arrange (with the City of North Kansas City, Grinnell, and with a contractor) for the paving, and to pave 23rd Avenue.The evidence introduced by plaintiff and defendant tending to support and refute the alleged agreement was much in conflict; and defendant as late as March 27, 1950, had not caused the pavement to be laid.Meanwhile, plaintiff's contractor had been building plaintiff's new factory; and, upon the near completion of the building, plaintiff's contractor was looking to the problem of sewage disposal.It was impossible, or at least it was impracticable, to connect a sewer with the sewer main in Burlington Avenue as stipulated in the contract of 1946; but a sewer main was then in process of installation in 26th Avenue, and sewage from plaintiff's plant was eventually drained into that sewer; however, pending the completion of the sewer in 26th Avenue, it became necessary to install a temporary sewer system serving plaintiff's new plant.The parties, plaintiff and defendant, got into a controversy as to which one of them should bear the expense of laying the temporary sewer.It was plaintiff's position that the contract of January 2, 1946, obligated defendant to provide a sewer outlet in any event; and it was defendant's position that (in no way due to defendant's fault)plaintiff's building had been constructed too low for drainage of sewage into the sewer main in Burlington; and that defendant, although willing to ultimately construct a permanent sewer to 26th Avenue, should not be obliged to bear the expense of installing the temporary sewer system.

Conferences concerning the drainage problem reached an impasse sometime in late March, 1950, and, although it has no direct bearing on the issues of the instant case, it was at that time or soon thereafter that the parties became noncooperative and further involved in controversy relating to asserted delay of defendant in arranging for the paving on 23rd Avenue.The sewer dispute 'was the straw that broke the camel's back.'(Ultimately, plaintiff engaged a contractor to pave the street.)Plaintiff's building contractor completed the building so that it was ready for occupancy about April 12, 1950.Plaintiff made a 'piecemeal' movement of some of its old paintmanufacturing mills to the new plant and installed one new mill during April and May, and made a first 'trial run' in the new plant on May 4th.Plaintiff, however, did not complete the moving of its equipment, office furniture and supplies until late May or early June.

Plaintiff's new plant in North Kansas City was capable of producing much more of plaintiff's products than its plant on Roanoke Street.It was the theory of plaintiff that defendant had breached its oral agreement by unreasonably delaying the construction of the pavement with ensuing delay in moving plaintiff's equipment over the broken-up, muddy, miry, cindered surface of 23rd Avenue, and that plaintiff was thus deprived for the two-month period of April and May, 1950, of the new plant's increased production facilities and of consequent increased sales and profits, all to plaintiff's damage.The element of damages claimed by plaintiff was 'loss of profits,' as illustrated by plaintiff's combined principal verdict-directing InstructionsNos. 2 and 3, which were in part as follows 'The court instructs the jury that if you find and believe from the evidence that on or about January, 1946, plaintiff, by written contract, purchased of defendant the real estate owned by plaintiff as mentioned in evidence as and for a site for the erection of a factory * * *; and if you further find and believe from the evidence that thereafter and in November, 1949, plaintiff * * * entered into an oral contract with defendant, * * * whereby plaintiff waived the provisions of said written contract of January, 1946, with reference to the obligation of defendant to build a switch track 253.77 feet in length, * * * and if you further find that in consideration of such agreement by plaintiff * * * defendant agreed with plaintiff forthwith to take...