Wartenbe v. Car-Anth Mfg. & Supply Co.

• Court: Missouri Court of Appeals
• Writing for the Court: PER CURIAM; RUDDY, Acting P. J., and FRANK W. HAYES and RAY E. WATSON
• Citation: Wartenbe v. Car-Anth Mfg. & Supply Co., 362 S.W.2d 54 (Mo. App. 1962)
• Decision Date: 20 November 1962
• Docket Number: No. 31228,CAR-ANTH,31228
• Parties: David R. WARTENBE, Loretta C. Wartenbe, John A. Wartenbe and Cledith D. DeNoon, Trustees of Wartenbe Filters, Inc., Plaintiffs-Appellants, v.MANUFACTURING AND SUPPLY COMPANY, Defendant-Respondent.

Page 54

362 S.W.2d 54

David R. WARTENBE, Loretta C. Wartenbe, John A. Wartenbe and Cledith D. DeNoon, Trustees of Wartenbe Filters Inc., Plaintiffs-Appellants, v. CAR-ANTH MANUFACTURING AND SUPPLY COMPANY, Defendant-Respondent.

No. 31228.

St. Louis Court of Appeals, Missouri.

Nov. 20, 1962.

Wilder Lucas, Jack R. Mandel, St. Louis, for plaintiffs-appellants.

Hocker, Goodwin & MacGreevy, John M. Goodwin, St. Louis, for defendant-respondent.

DOERNER, Commissioner.

Plaintiffs' suit is one for alleged breach of contract, in which they prayed for a judgment of $15,444. Defendant denied generally and counterclaimed for $1632.97 for work performed. Trial before a jury resulted in a verdict and judgment in favor of defendant on plaintiffs' cause of action and in favor of plaintiffs on defendant's counterclaim. Plaintiffs thereupon appealed to the Supreme Court, where the matter was briefed and argued. In their brief plaintiffs had asserted that the amount in controversy exceeded $15,000, but upon reviewing the record the Supreme Court found that plaintiffs had submitted the case to the jury upon an expressed request for a verdict of $9,122.82. It thereupon determined that it lacked jurisdiction and transferred the appeal here.

Since the merits of the controversy are not involved in the points raised on appeal a brief statement of the factual background will suffice. On or about October 1, 1953, Wartenbe Filters, Inc. was awarded a contract to furnish 961 oil filters to F. H. Magraw and Company. Wartenbe Filters did no manufacturing, adn arranged to obtain the component parts of the oil filters from various suppliers, including top cover castings made of aluminum, and plug castings made of bronze, from Bodine Foundry. About October 2, 1953, it obtained a written bid from the defendant to machine these castings in a certain manner. On October 23, 1953 Wartenbe Filters gave defendant a purchase order for the work, which defendant accepted. Under the contract thus made defendant agreed to machine 975 aluminum top cover castings for the price of $149.12 per hundred, and 975 bronze plug castings for the price of $62.50 per hundred. We gather from the testimony that the work included the machining of a recess in the cover casting into which the plug was to be seated, and the purchase order contained the provision: 'Valve cylinder in cover and valve plug to be lapped for leak proof fit. Each cover with plug lapped in to be kept together by washer and nut furnished. * * *'

Plaintiffs' evidence was that after defendant had completed its work on a few of the covers and plugs they were tested by Wartenbe Filters with water under pressure and found to leak. Defendant's further efforts to lap in the plugs so as to obtain a leak-proof fit were unsuccessful, and, according to plaintiffs' evidence, defendant told Wartenbe Filters to take the work elsewhere. Wartenbe Filters attempted to find another supplier who would do the work, and one of three firms which subsequently tried to obtain a leak-proof fit, the Small Manufacturing Company, finally devised a method which achieved that result on two or three assemblies. However, plaintiffs' evidence was further to the effect that a sufficient volume of production to meet Wartenbe Filters' deadline could not be realized by this method and that it eventually substituted a top cover casting made of cast iron for that of aluminum.

This action was filed by Wartenbe Filters, Inc., on November 21, 1955. At that time it was a Missouri corporation, in good standing, and it remained so until January 1, 1958, when the Secretary of State forfeited its charter for failure to register and file the anti-trust affidavit as required by Chapter 351 RSMo 1959, V.A.M.S. Plaintiffs, as the then directors and officers in office, who became trustees of the corporation by virtue of Section 351.525, were thereupon substituted as plaintiffs.

Defendant tacitly admitted that it had not performed the contract, and the basis of its defense was impossibility of performance. According to its evidence, a leak-proof fit could not be obtained or retained between the bronze plug and the aluminum casting because the plug, being made of the harder metal, galled and scored the softer aluminum casting. Plaintiffs denied the claimed impossibility of performance, and pointed to one leak-proof assembly achieved by David Wartenbe, one of the plaintiffs and the former president of Wartenbe Filters, Inc., and to the two or three made by Small Manufacturing Company. Thus the decisive issue of fact was a relatively simple one.

We are not asked to pass upon the merits of the defense asserted below. Plaintiffs' primary complaint on appeal is that they were deprived of a fair trial. They contend that this resulted, first, because the court permitted defendant to cross-examine Wartenbe about certain partially paid bills; and second, because of various prejudicial comments, remarks and arguments made by counsel for defendant. Their only other point is that Instruction No. 2, given at the request of defendant, was prejudicially erroneous.

As to the first part of plaintiffs' primary complaint, on direct examination plaintiffs' witness David Wartenbe enumerated various expenses for merchandise and labor which plaintiffs claimed were incurred because of defendant's breach of contract. On cross-examination defendant developed, without objection, that there were some accounts for merchandise that had not been paid in full. Defendant then inquired what had happened to the machinery and other physical assets of Wartenbe Filters, plaintiffs objected, and a long and involved colloquy occurred out of the hearing of the jury. This ended with defendant's claim that it was entitled to know whether the bills had been paid (although that subject had nothing to do with the question propounded), and the court commented, 'Yes. He may answer.' Defendant then questioned Wartenbe further about various bills, and developed that certain other accounts had been only partially paid.

We have painstakenly searched the record and have failed to find any objection by plaintiffs to defendant's line of inquiry, which of itself would bar plaintiffs' complaint on appeal. Furthermore, plaintiffs cite no authority holding that such cross-examination was improper, nor have we found any. Of course, if such debts were incurred and were properly attributable to defendant's breach of contract, then plaintiffs were entitled to recover for them whether or not they had paid them. Curtis v. McNair, 173 Mo. 270, 73 S.W. 167; Orf v. Ostmann, Mo.App., 170 S.W.2d 941; Patterson v. Springfield Traction Co., 178 Mo.App. 250, 163 S.W. 955. At plaintiffs' request, the court instructed the jury to that effect. We find no merit in plaintiffs' contention.

A proper consideration of the second part of plaintiffs' complaint requires a further statement of facts. In their petition plaintiffs alleged that Wartenbe Filters had agreed to furnish the oil filters to the Magraw Company for $31,059.52; that its actual cost was $32,434.24; that its cost would have been only $18,489.84 had defendant performed its contract; and that Wartenbe Filters had therefore suffered damages in the sum of $13,944.40. When plaintiffs sought to prove their damages by showing these over-all figures defendant repeatedly objected that the proper measure of damages was the additional costs, if any, incurred by Wartenbe Filters in having others do the work on the two parts which defendant had contracted to do, and not the over-all costs of obtaining and assembling the various other parts which went to make up the filter. After a conference in chambers on the subject, plaintiffs seemingly agreed with defendant's contention and thereafter developed from witness Wartenbe their evidence on damages in accordance with that theory.

However, when defendant cross-examined Wartenbe it returned to the over-all figures and obtained from him the admission that the claimed total cost of $32,434.24 included the cost of replacing certain patterns which had been destroyed in a fire at the shop of another supplier; and that it also included the defendant's unpaid bill of $1,132.97 for work performed, for which defendant was counterclaiming. Defendant also brought out that plaintiffs' claimed out-of-pocket loss was the difference between $31,059.52, received from Magraw, and its over-all cost of $32,434.24, or about $1,374. The record then reveals the following:

'Q. (by Mr. Goodwin): All right. When you take off all of these things, when you take off our bill, which you haven't paid; when you take off Bodine's $2,000.00, which you haven't paid; when you take off $1,100.00 for a pattern that burned up; and when you take off $230.00 for materials furnished and some other things, you actually had a profit on this, didn't you?

'MR. LUCAS: I object to this, Your Honor, because he incurred those liabilities and he has already stated he hasn't paid them----

'MR. GOODWIN: It goes to the credibility of the witness that he would claim things which he is not entitled to.

'MR. LUCAS: No. The question is, the man is entitled to claim what he has incurred as an obligation. In other words, the corporation has obligated itself in certain regards. To the extent that they have, that is an element of damage. There is the question of whether they have been able to pay for it or not, but they are liable for it.

'MR. GOODWIN: Now, that is not true. They are no longer liable for them, because the corporation ceased to exist and the man is not personally liable for them.

'MR. LUCAS: He is a trustee and he is bringing this lawsuit as a trustee.

'MR. GOODWIN: He is bringing the lawsuit to pay these suppliers? They have all charged it off long years ago.

'MR. LUCAS: I don't know whether they have charged it off or not. Apparently not.

'MR. GOODWIN: There is no lawful way they can recover against him now. The corporation ceased to exist more than a...