United States Rubber Products, Inc. v. Clark

• Court: Florida Supreme Court
• Writing for the Court: BROWN, Justice.
• Citation: United States Rubber Products, Inc. v. Clark, 145 Fla. 631, 200 So. 385 (Fla. 1941)
• Decision Date: 14 January 1941
• Parties: UNITED STATES RUBBER PRODUCTS, Inc. v. CLARK.

200 So. 385

145 Fla. 631

UNITED STATES RUBBER PRODUCTS, Inc. v. CLARK.

Florida Supreme Court, Division B.

January 14, 1941

Rehearing Denied March 7, 1941.

Error to Circuit Court, Polk County; W. J. Barker, Judge.

Suit by R. Harold Clark, doing business as Mulberry Supply Company against the United States Rubber Products, Incorporated, for damages for breach of warranty. To review a judgment on a verdict for plaintiff, defendant brings writ of error.

Affirmed.

COUNSEL

Cody Fowler and William A. Gillen, both of Tampa for plaintiff in error.

Huffaker & Edwards and Holland, Bevis & Hughes, all of Bartow, for defendant in error.

OPINION

BROWN Justice.

This is a suit for damages for an alleged breach of warranty covering a Hot Rock Conveyor belt. A verdict and judgment were rendered below in favor of the plaintiff, who is defendant in error here, and the United States Rubber Products Inc., the defendant below, brings this writ of error.

The plaintiff is a jobber of mining supplies in the phosphate section of Polk County, and has for some time been the representative of the defendant in this area. In early 1934 the American Agricultural Chemical Company, being desirous of purchasing a belt to convey hot phosphate rock from its dryers to its storage bins, sent out quotation requests to various manufacturers, designated No. 1934, which were accompanied by a data sheet describing operating conditions at the plant, and stating among other things, that the belt was to be used to convey hot dry pebble phosphate rock of the maximum temperature of 'about 250º F.' Among others, one was sent to the Main Belting Company. From the replies received thereto, it appears that the American Agricultural Chemical Company concluded the belt manufactured by the Main Belting Company was the one best suited to their needs. However, in December, 1934, the said phosphate company sent another quotation request to the Main Belting Company, designated No. 1974, seeking further information regarding price and guarantee.

Defendant and the Main Belting Company had a working agreement in force at that time, whereby the defendant would accept any orders in the South for Main Belting Company belts and the latter company would fill them. Accordingly, the defendant advised the plaintiff, its agent, that he could accept and fill the order of the American Agricultural Chemical Company for the Main Belting Company's belt.

The American Agricultural Chemical Company in 1935 then entered with the plaintiff the following order for 735 feet of:

'20"' 7 Ply-Main Belting Co. ABC Hot Rock Conveyor Belting (5 plies canvas and 2 plies asbestos @ $2.55 per Lin. Foot, per Main Belting Co. quotation dated 12/11/34 our request #1974.

'Must be covered by the following guarantee:

"This belt is guaranteed to earn its cost against the average of the last six belts used on this installation. The average is $0.00466 per ton handled, as shown by performance record attached."

The plaintiff forwarded this order to the defendant, including the same warranty, and the defendant procured the belt from the Main Belting Company, and had it sent to the American Agricultural Chemical Company.

The belt was installed upon receipt by the American Agricultural Chemical Company, and the evidence discloses that after little more than two months' service it was worn beyond further use. The plaintiff, upon the failure of the belt, notified the Main Belting Company, who furnished a second one without charge, which also lasted little more than two months. It is uncontradicted that the two belts together handled but a total of 108,102 tons of phosphate, and in order to have earned the cost price of the first belt they would have had to have handled a total of 402,200 tons. In other words, the two belts together earned only $503.75, based upon the average cost price of $0.00466 per ton, failing by $1,370.50 to earn the cost of the first belt.

After some negotiations between the parties, it appears the plaintiff paid to the American Agricultural Chemical Company the $1,370.50 claim, and then made demand upon the defendant for reimbursement. The defendant disclaimed any liability and refused to pay the plaintiff, who then brought this suit.

The plaintiff's amended declaration contained eleven counts, the first six being common counts, and the 7th, 8th, 9th, 10th and 11th being special counts. The alleged warranty was set forth in the 7th and 8th counts, and a copy of the purchase order containing the cause of action and performance record of the previous six belts used on the installation were attached to and by special reference made a part of these counts. The defendant interposed a demurrer to these counts upon the ground that the declaration did not embrace the entire warranty alleged to have been made by the defendant.

Rule 16 of the Common Law Rules provides that the plaintiff shall attach a copy of the contract or cause of action 'or a copy of the portions thereof material to plaintiff's cause of action.' The object of this rule, in requiring such a copy to be attached, is the same as that of old rule 14 for which it has been substituted, viz: to apprize the defendant of the nature and extent of the cause of action alleged against him in order that he may plead thereto with greater certainty. Register v. Pringle Bros., 58 Fla. 355, 50 So. 584. If the defendant conceives that the cause of action so filed is not sufficiently full, certain and complete as to enable it so to plead to the declaration, its remedy, as further provided in the rule, is to move the court for an order requiring a more definite cause of action. See State v. Seaboard Air Line Ry., 56 Fla. 670, 47 So. 986. This the defendant did, and the court granted such anorder requiring the plaintiff to deliver to defendant a full and complete copy of the said 'quotation dated 12/11/34 our request #1974.'

The real basis of the defendant's position rests, as we see it, upon the ground that the American Agricultural Chemical Company's 'request #1974' contained this statement:

'Note: You have the complete information as to the installation and operation of this belt. And we will leave it to you to recommend a belt you think most suitable.'

The defendant asserts that this refers to and incorporates as a part of the contract the prior quotation request, being No. 1934, which was accompanied by the data sheet above referred to.

It is true that where a writing expressly refers to and sufficiently describes another document, that other document, or so much of it as is referred to, is to be interpreted as part of the writing. See Canal Lumber Co. v. Florida Naval Stores & Mfg. Co., 83 Fla. 501, 92 So. 279; McGhee Interests v. Alexander Nat. Bank, 102 Fla. 140, 135 So. 545; 17 C.J.S., Contracts, 717, § 299; 3 Williston on Contract (1936) 1801, Sec. 628. Applying this criterion to our facts, we do not believe there was a sufficient description of and certainly there was no express reference to, the data sheet so as to include and make it a part of the contract.

It is a primary rule that, in construing contracts or instruments, we must seek the intention of the parties at the time of executing them. Holmes v. Kilgore, 89 Fla. 194, 103 So. 825. The intent of the parties with respect to any feature of the contract must be determined from an examination of the whole of the contract, and not of disjointed parts of it. It is not enough to look to an isolated phrase or paragraph of the contract in an effort to determine its true meaning. Canal Lumber Co. v. Florida Naval Stores & Mfg. Co., supra. And by this test, we further conclude that the instruments which the defendant contends are a part of the contract were excluded by the clear meaning of the purchase order and 'quotation 12/11/34 our request #1974.' The warranty which was made in the purchase order was that the belt should earn its cost against the average of the last six belts used on the installation, such average being shown 'by performance record attached.' As we construe this, it is clear the warranty was that the belt should earn its cost when credited with the average cost, as computed by the average cost per ton of the last six belts when operated under those same conditions. That this was also the understanding of the manufacturer is similarly clear when we examine their reply to 'quotation request #1974.' The offer for bids requested information as to whether the Main Belting Company would give the following guarantee: 'To earn its cost against the average cost of all former belts of the same type, measured in the cost of per tons handled, with prices of all belts brought to a common basis.' The Main Belting Company, in its reply, wrote immediately under this query 'see letter attached regarding...