Warren v. A. B. Mayer Mfg. Co.

• Decision Date: 12 March 1901
• Citation: 161 Mo. 112,61 S.W. 644
• Parties: WARREN v. A. B. MAYER MFG. CO.
• Court: Missouri Supreme Court

61 S.W. 644

161 Mo. 112

WARREN v. A. B. MAYER MFG. CO.

Supreme Court of Missouri, Division No. 2.

March 12, 1901.

CONTRACTS — STATUTE OF FRAUDS — WRITTEN CONTRACT — PAROL MODIFICATION — SALES — MEASURE OF DAMAGES.

1. Where a written contract for the sale of personalty is modified as to the manner of payment by parol, and the modification remains executory, and the contract is one required by the statute of frauds to be in writing, the modification is unenforceable.

2. Where plaintiff purchased of defendant structural iron, stating that he wished to use it in a building he was going to erect, in an action for refusal to deliver the iron defendant was not chargeable with the amount expended by plaintiff in grading his lot to receive the iron, the matter not having been within defendant's contemplation.

3. Where plaintiff purchased structural iron that was a part of defendant's building, plaintiff to tear down the iron, and, after plaintiff had taken down some of the iron, defendant refused further delivery, and retook what plaintiff had removed, defendant was chargeable with plaintiff's expenses in taking down the iron.

4. In an action for defendant's refusal to deliver structural iron sold plaintiff, and then a part of defendant's building, the fact that plaintiff wished to use it in another building would not enhance the value of the iron to plaintiff beyond the market price of such iron.

5. Where plaintiff sued for defendant's failure to deliver iron purchased, evidence as to the value of that character of iron, by those acquainted with the market value thereof, was admissible in estimating the value of the iron in determining the damages.

6. In an action for refusal to deliver structural iron purchased of defendant, the same being taken out of defendant's building, if there was no market value for such iron the best evidence for determining the damages would be the value of the iron as ascertained from those experienced in dealing with property of such character.

Appeal from St. Louis circuit court; S. P. Spencer, Judge.

Action by Thomas Warren against the A. B. Mayer Manufacturing Company. From a judgment in favor of defendant, plaintiff appeals. Reversed.

Wm. C. & Jas. C. Jones, for appellant. Lubke & Muench, for respondent.

GANTT, J.

Plaintiff sued to recover damages to the amount of $3,060 for breach of a written contract evidenced by the following proposal and acceptance: "Mr. Thomas Warren, City — Dear Sir: We have this day sold to you such portion of the front of building, northeast corner Eighth and Olive streets, and such other iron as you may select, for the sum of $9 per ton net ton of 2,000 pounds, delivered at Eleventh and North Market streets; you to take the iron down at your own expense. Yours, respectfully, A. B. Mayer Mfg. Co. H. Mayer." "It is understood that no wrought iron is included." "Received and accepted July 12th, 1895."

Plaintiff alleged that the said iron constituted the front of an old building, consisting of iron columns and beams, weighing about 60 tons; that he proceeded immediately to take down said columns, and defendant commenced delivering; that, after delivering 9 tons, defendant not only refused to deliver any more, but retook that which it had delivered; that said iron had a special value to him, because it was to be used in another building, which was well known to defendant; that said iron was worth $60 per ton; and he was damaged $3,060. The answer was a general denial, and that before any iron was delivered plaintiff and defendant mutually modified said contract by adding thereto an agreement that plaintiff would pay cash as and when said iron was delivered, and before the delivery of any part plaintiff would deposit $300 to be held as security for the payment of the iron as it should be delivered; that plaintiff failed and refused to make said deposit or payment, whereupon defendant declined to deliver the iron until plaintiff should pay as he had agreed. Reply was a general denial.

It appeared from the evidence that a building on the northeast corner of Eighth and Olive streets, belonging to the Erskine estate, was to be wrecked to make room for a new building. The building was at least 30 years old, and the iron columns and beams in question were a part of the Eighth street and Olive street fronts. The wrecking seems to have been done by a firm named Arthur Johnson & Bro., from whom the defendant had purchased the iron for cash on delivery, and the contract with whom contained other conditions. The plaintiff was brought to defendant by an intermediary named Streletzki, and at the defendant's office an agreement was arrived at to sell the structural portion of the iron to plaintiff at $9 per ton, the amount being roughly estimated at 30 or 40 tons. Henry Mayer, an employé of defendant, wrote out the proposition on the typewriter, and brought it to Cassidy, the old bookkeeper of defendant. Cassidy glanced over the paper, and then suggested the fact that the wrought iron was not included in the sale, and added the phrase below the signature that had been attached to the paper by Henry Mayer. Then the paper was handed by A. B. Mayer (president of defendant) to plaintiff, who placed it in his pocket, and moved towards the door with A. B. Mayer. Before they passed out Cassidy called them back, and reminded both parties of the fact that the contract with Johnson & Bro. required the iron to be thrown on the sidewalk, and the payment to be spot cash. Some conversation ensued, and then Warren acceded to the suggestion of Mayer for the iron as received, and further agreed to send up $300 check on the next day to be security for the making by him of such payments. Within a few days the iron was begun to be taken down, and the defendant removed some loads thereof to Eleventh and North Market streets. Warren did not send the $300, and Mr. A. B. Mayer looked him up at the old building, and was again promised a check, which never came. Then defendant made out and presented bills to Warren for the iron already delivered, which he refused to honor, and on July 16, 1895, wrote the following letter: "St. Louis, Mo., July 16th, 1895. A. B. Mayer Manufacturing Co., 1012 to 1022 North 12th Street, City — Dear Sirs: I hold your contract of sale for the front of building northeast corner of 8th and Olive streets, and such other iron as I may select, for the sum of $9.00 per net ton of 2,000 pounds, delivered at 11th and North Market street, I to take the iron down at my expense. This is to notify you that I will hold you responsible for any loss or damage resulting from your failure to comply fully with the terms of this agreement, and, if you don't at once remove the iron I have had taken down and deliver as you agreed, I will feel at liberty to employ others to haul it there at your expense. Respectfully, Thomas Warren." On the same day defendant wrote plaintiff: "Office of A. B. Mayer Mfg. Co., St. Louis, July 16, 1895. Mr. Thomas Warren, City — Dear Sir: We hereby notify you that we refuse to deliver to you any of the iron that comes out of the building at northeast corner Eight and Olive streets until you pay us for same, and you are hereby notified not to remove any of it until you pay for same and have our written consent. Yours, respectfully, [Signed] A. B. Mayer Mfg. Co., per J. A. Cassidy." Upon plaintiff's refusal to pay, defendant resold the iron for the same amount to another party. Three witnesses for defendant testified that Warren orally agreed to pay cash as the iron was delivered, or deposit the $300 as security. Warren denied that he made this subsequent contract. He admits he never erected the building for which he says he was buying the old iron. He estimated his expense of taking down the front at $150, and says he was at a collateral expense of $150 in leveling his lot for said new building. On the trial plaintiff offered to testify what this old iron would have been worth in the building which he had contemplated building, but did not build, but upon objection this testimony was rejected, and he excepted. Thomas, another witness for plaintiff, was asked: "Will you please state what was the value of that iron, not as scrap iron, but for the purpose of being used in another building?" It being admitted no building was erected, counsel for defendant objected, and the objection was sustained.

At the close of all the testimony, the court of its own motion instructed the jury as follows: "Gentlemen of the Jury: If you believe from the evidence that the letter of July 12, 1895, signed by the defendant, was accepted by the plaintiff, and became the only contract between the parties, then plaintiff was entitled to receive from the defendant all the iron called for in the said contract, and under the conditions thereof, and plaintiff was not required to pay in advance for such iron before its delivery to plaintiff; and if you further find from the evidence that the defendant did not deliver the said iron as t...