Union Service Co. v. Moffet-West Drug Co.

Citation128 S.W. 7,148 Mo. App. 327
PartiesUNION SERVICE CO. v. MOFFET-WEST DRUG CO.
Decision Date03 May 1910
CourtCourt of Appeal of Missouri (US)

Plaintiff wrote offering to furnish six horses and vehicles for $43 a month for two years, and defendant answered, offering to take four vehicles as long as the price and outfits were satisfactory. Plaintiff replied, acknowledging receipt of defendant's letter accepting the proposition, whereby plaintiff would furnish four vehicles for two years. Held, that defendant did not bind himself for two years, and plaintiff did not agree that the contract could be terminated by defendant on any condition.

5. CONTRACTS (§ 346)—PLEADING—ISSUES— PROOF—VARIANCE.

Where a petition sought relief on an agreement alleged to have been made by specified correspondence, the rights of the parties based on subsequent conduct and correspondence were not involved.

Appeal from St. Louis Circuit Court; Jas. E. Withrow, Judge.

Action by the Union Service Company against the Moffet-West Drug Company. From a judgment granting insufficient relief, plaintiff appeals. Affirmed.

Jos. S. McIntyre and N. S. Brown, for appellant. S. T. G. Smith, for respondent.

GOODE, J.

Both parties are incorporated companies, the plaintiff having succeeded to all the interests, contracts, and rights of its predecessor, the St. Louis Service & Horse Company. The action is to recover damages for the refusal of defendant to comply with a contract alleged in the petition to be "embodied in certain letters, dated as follows: One September 15, 1905, two September 29, 1905, and one September 30, 1905." It is alleged that, by the contract, plaintiff agreed to furnish and defendant to use and pay for four storm buggies with horses and harness, to be delivered every day for a period of two years, beginning October 15, 1905. The demand is resisted on the theory the contract was not for two years, but was terminable at defendant's option, and was terminated March 1, 1906. The court below at defendant's request directed a verdict for plaintiff for $10.93 as being the amount defendant would owe if its contention were right; whereas, plaintiff asked judgment for $3,400 as the amount that would have been earned if the contract was for two years and had been carried out. The averment of the petition is defendant notified plaintiff it no longer desired the latter to furnish buggies under the contract after February, 1906, but, notwithstanding said notice, plaintiff stood ready and willing to comply with the contract to the date of its expiration, two years from October 15, 1905. The four letters said to contain the contract are these:

"Sept. 15, 1905. My Dear Mr. West: Mr. Anderson tells me that you will probably make some change in your present contract with reference to storm buggies for your salesmen. As he no doubt explained to you, I have organized a company for the special purpose of supplying high class equipment for work of this kind. I understand you will want six complete outfits, one of which will be maintained at Wellston. I beg to quote you a rate of $45 per calendar month for each outfit, contract to run two years from date of commencement, with the privilege of extension beyond this period at the same rate, or to reduce the number of buggies at the expiration of two years if deemed expedient. This rate contemplates that the equipment shall be delivered to the salesman at the store, or to be called for, as you may elect. It also contemplates the supplying of equipment that shall be entirely satisfactory to you. You may receive bids as low, or perhaps lower than I have quoted, but I feel quite sure that it will be difficult for any one else to furnish you with a more satisfactory service than I am able to furnish. I am familiar with the requirements of this class of work, and have in Mr. Anderson one of the most competent assistants that can be found in the city. If you should elect to accept this proposition, I shall require a little time in which to get the equipment together, which will all be new and strictly first class. Very truly yours, Union Service Company, by John M. Allen, President."

"Sept. 29, 1905. My dear Mr. West: With reference to your talk yesterday with Mr. Anderson in the matter of supplying storm buggies for your salesmen, I have decided to make you a price on the entire outfit as described in my letter of the 15th inst., for forty-three dollars ($43.00) per month for each and every working day in the calendar month. If you find this proposition satisfactory and will advise me to-day, I will immediately place the order for the equipment, and hope to be able to deliver the entire six buggies at your place of business for service on the 15th day of October. I am quoting you an exceptionally close price and propose to furnish you a class of equipment that your salesmen will be proud of. Sincerely Yours, Union Service Company, by John M. Allen, President."

"St. Louis, Mo., Sept. 29, 1905. J. M. Allen, Pres. St. Louis Service & Horse Co., St. Louis, Mo. Dear Sir: In answer to your proposition to us under date of September 15th and 29th, beg to say that we will accept same for the equipment of four complete outfits for our salesmen's use as described in your letter for the consideration of $43.00 per month each, and any additional outfits required by us for salesmen's use will be furnished by you at the same price. Three outfits to be delivered to our place of business and one to our west end salesman at or near Wellston on the morning of every working day at seven o'clock a. m. We will agree to employ this service from you as long as the price and outfits are satisfactory. The above outfits to be furnished to us beginning October 15th, 1905. Yours truly, Moffet-West Drug Co., C. H. West, Sec'y."

"Sept. 30, 1905. Dear Sir: I am in receipt of your favor of the 29th accepting our proposition of September 15th and 29th, whereby we will furnish you with four storm buggies, with horses and outfit complete, three to be delivered at your place of business and one to be delivered as may be directed by you later at or near Wellston, on each and every working day at 7 o'clock a. m., at a rate of $43.00 per month each, for a period of two years, beginning Oct. the 15th, 1905, you to have the privilege of ordering additional outfits that may be required upon reasonable notice at the same price. We have to-day placed our order for these outfits and will do everything we possibly can to deliver them to you on the morning of the 15th, as above indicated. Thanking you for the contract, and assuring you that we shall leave nothing undone to make our relations satisfactory, believe us, Very truly yours, Union Service Company, by John M. Allen, President."

The petition alleges the terms of the contract said to have been formed by those letters as follows: "Plaintiff states that during the month of September, 1905, the St. Louis...

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