Tower Grove Planing Mill Co. v. McCormack

• Decision Date: 03 December 1907
• Citation: 106 S.W. 113,127 Mo.App. 349
• Parties: TOWER GROVE PLANING MILL COMPANY, Appellant, v. McCORMACK, Respondent
• Court: Missouri Court of Appeals

106 S.W. 113

127 Mo.App. 349

TOWER GROVE PLANING MILL COMPANY, Appellant, v. McCORMACK, Respondent

Court of Appeals of Missouri, St. Louis

December 3, 1907

Appeal from St. Louis City Circuit Court.--Hon. Daniel G. Taylor Judge.

AFFIRMED.

Judgment granting a new trial affirmed and cause remanded.

Walther & Muench for appellant.

(1) The Statute of Frauds was enacted in view of the mode and manner in which business affairs are usually conducted and was not intended to obstruct the free course of trade or to afford an excuse for violating commercial integrity. 29 A. and E. Ency. Law (2 Ed.), p. 953; Meyer v. Thompson, 16 Ore. 194. (2) A contract for manufacturing mill work for a building according to plans and specifications, of a peculiar design suitable only for use in that particular building, not suitable for the general trade and valueless for any other purpose, does not come within the Statute of Frauds. Pratt v. Miller, 109 Mo. 78; Haynes v. Second Baptist Church, 88 Mo. 285; Flynn v. Dougherty, 91 Cal. 669, 14 L. R. A. 230; Heintz v. Burkhead, 29 Ore. 55; Puget Sound Co. v. Rigby, 13 Wash. 264; Clay v. Yates, 1 H. and N. 79; Phipps v. McFarlane, 3 Minn. 109; Meinecke v. Falk, 55 Wis. 427; Brown v. Wunder, 64 Minn. 450; Orman v. Hogan, 3 N. M. 568; Forsythe v. Mann., 68 Vt. 116; Abbott v. Gilchrist, 38 Me. 260; Height v. Ripley, 19 Me. 137; Pitkin v. Noyes, 48 N.H. 294; Bagby v. Walker, 78 Md. 239; Suber v. Pullin, 1 S. Car. 273; Turner v. Mason, 65 Mich. 662; Cason v. Cheeley, 6 Ga. 554; Goddard v. Burney, 115 Mass. 450; Chapman v. Ry. Co., 146 Mo. 481; Baker on Law Sales, sec. 96. Smith on Const. of Statute of Frauds, sec. 374, 375; Page on Contracts, 1024, 1025; 29 Am. and Eng. Ency. Law, 965; Reed on Statute of Frauds, secs. 247, 251; Wood on Statute of Frauds, sec. 298.

Stern & Haberman for respondent.

Plaintiff's second cause of action is not good under the Statute of Frauds. Burrell v. Highleyman, 33 Mo.App. 183; Pratt v. Miller, 109 Mo. 78; Belmers v. Nagel, 112 Mo.App. 202; Schmidt v. Rozier, 121 Mo.App. 306.

OPINION

GOODE, J.

--This action was instituted originally on a statement containing two counts. We are not concerned with the first one and will say nothing about it. The second count is as follows:

"And for its second cause of action, plaintiff states that on or about the 19th day of April, 1904, defendant gave plaintiff an order for the following described goods, to be manufactured by plaintiff for him, to-wit: 3 pairs of doors, 12' 0' x 15' 0', 2 1/4", 12 lts. 2 sash 3-9" x 4' 6' 8Lt, 1 1/4 diamond sticking for windows, (etc., etc., setting out other like articles). All to be in yellow pine; and agreed to pay therefor the sum of two hundred and fifty dollars, which order plaintiff on said day accepted.

"That thereafter defendant notified plaintiff that he would not accept said goods, nor perform said contract upon his part. That defendant has failed to pay the cost of said work, and has refused and still refuses to accept the said material. That by reason of defendant's said breach of said contract, plaintiff has been damaged in the sum of two hundred and fifty dollars, for which amount, together with interest and costs, it prays judgment."

The case was originally instituted in a justice's court whence it was appealed to the circuit court and retried. The evidence showed defendant was engaged in erecting an automobile garage at the World's Fair and ordered from the plaintiff company the goods in question for use in that building. After the stuff was about manufactured, the defendant notified plaintiff that he had placed the order with another company or mill, because plaintiff had been declared "unfair" by labor unions, and defendant would have trouble with employees if he used goods turned out by plaintiff's factory. There was evidence tending to show plaintiff did not carry in stock windows and doors either completed, or partly completed, but manufactured them for particular buildings according to plans and specifications, and that the doors and windows manufactured for defendant were peculiar in size and character and could not be used in other buildings. The case was tried without a jury and there was a judgment for plaintiff on the second count; which was afterwards set aside by the court and a new trial granted, on the ground that the court had erred in refusing certain declarations of law asked by the defendant. The substance of these declarations was, that if the court found from the evidence that the contract on which plaintiff based its second count, was one for the sale of merchandise or things of the price of more than thirty dollars, and that the buyer did not accept any part of the goods sold, or actually receive the same, and gave nothing in earnest to bind the bargain or anything in part payment, and no note or memorandum was made of the bargain and signed by the buyer or his agent, then, under section 3419 of the Revised Statutes of 1899, the finding must be for the defendant. These declarations invoked that clause of the Statute of Frauds which provides that no contract for the sale of goods, wares and merchandise of the price of thirty dollars and...