Werner v. Welsh Co.

• Decision Date: 18 March 1952
• Docket Number: No. 28320,28320
• Citation: 247 S.W.2d 311
• Parties: WERNER et al. v. WELSH CO.
• Court: Missouri Court of Appeals

Page 311

247 S.W.2d 311

WERNER et al. v. WELSH CO.

No. 28320.

St. Louis Court of Appeals, Missouri.

March 18, 1952.

R. G. Church Jr., St. Louis, for appellants.

Greensfelder, Hemker & Wiese, Forrest M. Hemker, and Mark R. Gale, all of St. Louis, for respondent.

RUDDY, Judge.

This cause was instituted in the Magistrate Court of the City of St. Louis, Missouri, on January 16, 1950. Plaintiffs prayed for judgment against defendant in the amount of $968.78. On March 28, 1950, the respondent herein (defendant below) filed in the said Magistrate Court its offer of judgment wherein it offered to allow judgment to be taken against it in the amount of $373.70, such offer of judgment being filed in accordance with Laws of Mo. 1945, secs. 51 and 52, page 765, RSMo 1949, Secs. 514.410 and 514.420, V.A.M.S. This offer was not accepted by plaintiffs and thereafter judgment was rendered in favor of plaintiffs for the full amount. An appeal by the defendant to the Circuit Court was perfected. In the Circuit Court a jury trial was waived and the case was heard by the court.

The only witness for the plaintiffs was Roy Werner who testified that plaintiffs were in the metalware fabrication business; that pursuant to conversations he had with Mr. Harwood of Welsh Company, written bids on the manufacture of two different size footwells for a baby stroller were submitted to defendant; that in each bid a price was given for a quantity run of 1000 pieces and another price for a quantity run of 20,000 pieces; that the price submitted for the 22 gauge steel footwells was at the rate of $2 each for 1000 hand made pieces and $0.93 each if as many as 20,000 were ordered; that the price submitted for the 26 gauge steel footwells was at the rate of $1.11 each for 1000 hand made pieces and $0.54 each if as many as 20,000 were ordered; that defendant sent its purchase order No. 3097 for five hundred 22 gauge steel footwells and that this purchase order contained the following: 'To be billed at .93 ea. If no additional orders are forth-coming to be billed at $1.67 ea.'; that these stroller footwells were delivered and accepted by the defendant; that the defendant never placed any further orders; that the defendant paid the bill at the rate of $0.93 each; that the defendant refused to pay the larger amount until the offer of judgment was made in the amount of $373.70, which was the difference between the $0.93 price and the $1.67 price charged for the 505 pieces delivered; that a second written purchase order No. 3678 of the defendant was received for 1000 of the smaller footwells; that the order showed a price of $0.54 each but said nothing about the price being $1.11 each if less than 20,000 were ordered; that upon receipt of this order he called Mr. Harwood, defendant's purchasing agent, and told him that a mistake had been made; that Mr. Harwood instructed him to change the order to read that, if 20,000 were not ordered, the price would be $1.11 and that Mr. Harwood stated he would change the defendant's copy of the order accordingly; that 1044 of these smaller footwells were furnished and accepted by the defendant; that the plaintiffs billed the defendant at the rate of $1.11 each but that defendant paid plaintiffs at the rate of $0.54 each and refused to pay the balance billed at the higher price amounting to $595.08; that the reason for the difference in price was that the smaller number had to be hand made which was costly and the larger number could be machine made and stamped out.

On cross-examination this witness further testified that he changed the price on order No. 3678 from $0.54 to $1.11 each after the conversation with Mr. Harwood; that he had no conversation with Mr. or Mrs. Welsh regarding the price of this item; that he knew nothing of the setup of the officers of the Welsh Company and that he knew that both orders had printed on the bottom of them: 'No other valid unless signed by an officer of the firm,' and that he didn't make any inquiry to see if he was dealing with an officer of the firm.

The only witness for the defendant was A. D. Welsh, president of defendant company, who testified that he and Mrs. M. D. Welsh were the only officers of the company and have been its only officers since 1929; that the initials appearing on orders No. 3097 and No. 3678 are those of Mrs. Welsh; that Harwood was never an officer of the company and never had authority to execute a purchase order; that the first time he knew that the price in the second order had been changed from $0.54 to $1.11 was when the litigation first came up; that he then looked at his duplicate office copy of the purchase order and found no change on it and that he didn't know that any change had been made on the plaintiffs' copy of the order; that he didn't know of any other price on the item covered by the second order than the $0.54 price; that Harwood was technically the company's purchasing agent with only the authority to go out and bring in bids for approval; that he had no authority to place an order; that he never placed an order during the time he was with the company and that no order had ever been placed without the approval of either Mr. or Mrs. Welsh and that Harwood had no authority to tell the plaintiffs to change the price on the order.

The trial court entered the following finding and judgment: 'Finding and judgment for plaintiff in the sum of $373.70 and costs to March 28, 1950, the date of defendant's offer of judgment. Judgment for defendant on remainder of plaintiff's cause of action and costs against plaintiff from March 28, 1950.'

No findings of fact or declarations of law were asked or given and the trial court did not indicate the ground or grounds upon which it predicated its finding and judgment. From this finding and judgment plaintiffs appealed.

Appellants contend that respondent placed...