Widmer v. Moran Bolt and Nut Manufacturing Company

• Decision Date: 03 February 1920
• Citation: 218 S.W. 351,203 Mo.App. 293
• Parties: A. J. WIDMER, Appellant, v. MORAN BOLT AND NUT MANUFACTURING COMPANY, a Corporation, Respondent
• Court: Missouri Court of Appeals

218 S.W. 351

203 Mo.App. 293

A. J. WIDMER, Appellant, v. MORAN BOLT AND NUT MANUFACTURING COMPANY, a Corporation, Respondent

Court of Appeals of Missouri, St. Louis

February 3, 1920

Argued and Submitted January 8, 1920.

Appeal from the Circuit Court of the City of St. Louis.--Hon Charles B. Davis, Judge.

AFFIRMED AND REMANDED.

Judgment affirmed and cause remanded.

Leonard & Sibley, Glen Mohler and R. H. McRoberts for appellant.

(1) The defense of the Statute of Frauds has been waived by respondent by the failure to object to the evidence on that ground or to request an instruction specifically calling for the defense of the statute. Schmidt v. Rozier, 121 Mo.App. 306; Scharff v. Klein, 29 Mo.App. 549; Clement v. Gill, 59 Mo.App. 482; Gifford v Willman, 187 Mo.App. 29; Royal Remedy Co. v. Gregory Grocer Co., 90 Mo.App. 53; Van Idour & Co. v. Nelson et al., 60 Mo.App. 523; Penninger v. Reilley, 44 Mo.App. 255; Yeoman v. Mueller, 33 Mo.App. 343; Hackworth v. Zeitinger, 48 Mo.App. 32; Miller v Harper, 63 Mo.App. 293; Neuvirth v. Engler, 83 Mo.App. 420. (2) A "memorandum" is all that is necessary to comply with the requirements of the Statute of Frauds, the letters in evidence constitute a sufficient memorandum, and a contract was completed by appellant's oral acceptance of the offer contained therein. Revised Statutes of Missouri 1909, sec. 2784; Browne, Statute of Frauds, (5 Ed.), p. 468, sec. 345 Carter v. Western Tie & Timber Co., 170 S.W. 445. (3) Even if a deposit was necessary to the existence of a contract the jury found under the instructions that appellant made the deposit in accordance with respondent's proposal, and the contract was thus consummated. Where the meaning of the written instrument is doubtful or susceptible of more than one meaning, oral evidence of conversations and statements of the parties, prior negotiations and the surrounding circumstances is admissible to aid in the construction and interpretation of the instrument. 13 Corpus Juris 544, and cases cited; 17 Cyc, 662-675, and cases cited; 6 Ruling Case Law 839, sec. 228, sec. 239, and cases cited; Sharp v. Sturgeon, 66 Mo.App. 191; Carter v. Western Tie & Timber Co., 170 S.W. 445; Leesley Bros. v. Fruit Co., 162 Mo.App. 195; Third Nat. Bank v. St. Charles Sav. Bank, 244 Mo. 554.

E. C. Slevin for respondent.

(1) Where it appears from the bill of exceptions that the trial court assigned specific grounds for sustaining a motion for new trial, but neither the order nor the specific grounds are inserted in the bill of exceptions, a presumption will be indulged in favor of the court's action if sustainable under any of the grounds of the motion for a new trial. Peper v. Peper, 241 Mo. 260, 264; State ex rel. v. Thomas, 245 Mo. 65, 73; Clarkson v. Garvey, 179 Mo.App. 9, 17; Bledsoe v. Letson, 215 S.W. 513. (2) An appellate court will not interfere with the discretion of the trial court in granting a new trial upon the ground that the verdict is against the evidence presented at the trial. Haven v. Railroad, 155 Mo. 216; Peper v. Peper, 241 Mo. 260, 265; Higgins v. Higgins, 243 Mo. 164, 171; Clarkson v. Garvey, 179 Mo.App. 9, 18. (3) It is well-settled law that to constitute a contract, the acceptance of an offer must be unequivocal, unconditional, and without the least variance. Gauss & Sons Co. v. Chicago Lumber Co., 115 Mo.App. 114; Sarran v. Richards, 151 Mo.App. 656; Railroad v. Joseph & Bros. Co., 169 Mo.App. 174. (4) If any condition be imposed or any change made from the offer itself, then it becomes a new offer and will not constitute a new contract until the other party has agreed to it. Union Service Co. v. Drug Co., 148 Mo.App. 327, 336; Sarran v. Richards, 151 Mo.App. 656, 660. (5) Where an essential condition of a proposed contract remains unperformed, as, for instance, the making of a cash deposit to guarantee performance, neither party is bound. Produce Co. v. Olsen, 188 Mo.App. 192. (6) A note or memorandum in writing of a proposed contract is required to be signed by the party to be charged with its performance. Sec. 2784, R. S. 1909; 20 Cyc, 272, sec. 2; Black v. Crowther, 74 Mo.App. 480; Cunningham v. Williams, 43 Mo.App. 629. (7) A subsequent oral modification of an agreement is unenforceable unless accepted in writing. Rucker v. Harrington, 52 App. 481; Warren v. Mayer Co., 161 Mo. 112; Arky v. Commission Co., 185 Mo.App. 241. (8) When the appeal is from an order granting a new trial wherein specific grounds are assigned by the court, but neither the order nor these specific grounds appear in the abstract of appellant, no assignment of error is presented to the appellate court. Millar v. Madison Car Co., 130 Mo. 529; Haven v. Railroad, 155 Mo. 216; Peper v. Peper, 241 Mo. 260; Higgins v. Higgins, 243 Mo. 164; Kraemer v. Ward, 149 Mo.App. 432. In this respect differing from an appeal from a final judgment wherein the record proper is before the court. State ex rel. v. Thomas, 245 Mo. 65, 77. It is not incumbent upon respondent to supply such parts of the record as appellant has not abstracted, when the omission appears upon the fact of the abstract. Gorden v. Modern Workmen, etc., 194 Mo.App. 666, 676.

REYNOLDS, P. J. Allen, J., concurs; Becker, J., in result.

OPINION

REYNOLDS, P. J.

This is an action to recover damages for breach of contract. The petition is in two counts. At the close of the trial defendant offered an instruction in the nature of a demurrer to the first count of the petition, which the court gave, whereupon plaintiff took an involuntary nonsuit with leave as to that count. As there is no appeal by plaintiff as to that it is unnecessary to consider the first count.

The second count avers that about March 11, 1916, plaintiff entered into a contract with defendant whereby defendant agreed to sell plaintiff 400,000 pounds of round bar steel of certain specified sizes and dimensions, and certain specified quantities of each size, to be of intermediate grade as per standard specifications adopted by the American Steel Manufacturers' Association, to be delivered at an agreed price of $ 2.486 per hundredweight base f. o. b. St. Louis, payment to be made on delivery of bill of lading on each car consigned to plaintiff; that the defendant agreed, in consideration of the contract, to communicate with the mill supplying defendant with the steel, and have changes in sizes made to suit plaintiff's requirement; that the price of steel had greatly advanced, the market price becoming stronger almost daily; that the defendant failed and refused to communicate with the mill in regard to the desired changes, and notified plaintiff, on March 31, 1916, that the changes plaintiff requested could not be made and that defendant refused to carry out the agreement. Averring his willingness and readiness to perform the conditions of the contract upon his side and to accept the steel and pay the prices agreed upon, but averring that defendant had repudiated the contract and failed and refused to carry out the provisions thereof, plaintiff avers that he has suffered damages in the sum of $ 2656 for which, with costs, he prays judgment.

The answer, omitting that to the first count, admitting the incorporation of defendant, was a general denial of all the allegations in the second count.

At the trial before the court and jury there was a verdict for plaintiff for the amount claimed under this second count. Defendant filed a motion for a new trial, the seventh ground of which was to the effect that the court had erred in refusing to give the instruction asked by defendant at the close of the case, that under the law, pleadings and evidence plaintiff was not entitled to recover. The court sustained the motion on this ground. From this plaintiff has appealed.

It appears that on March 11, 1916, plaintiff wrote to defendant, stating that it confirmed his acceptance over the telephone of the price of $ 2.486 per hundredweight, base f. o. b. cars St. Louis, on 200 tons of round bars for shipment in the next four months. The letter then proceeds to state that the writer (plaintiff) believed defendant originally specified in amounts of 50 tons February 11th and 150 tons February 26th, and for lists and qualities specified. Then follows the list as proposed by defendant, the bars running 115,000 pounds 5/8 inch, 140,000 pounds 3/4 inch, 85,000 pounds 7/8 inch, 10,000 pounds 7/16 inch, 50,000 pounds 1/2 inch, the bars to be from 16 to 20 feet long. Following this list of sizes as proposed by defendant, plaintiff wrote:

"These specifications to be changed and shipment made of 400,000 pounds of 3/8 inch rounds, in 60-foot lengths, or, if the mill prefers, in lengths of from 50 feet to 60 feet in even feet. Material to be intermediate grade, as rolled from billets, as per standard specifications adopted by the association of American Steel Manufacturers, revised April 21, 1914."

In reply to this letter of March 11th, defendant wrote, under date of March 17th, as follows:

"Referring to yours of the 11th inst., the consummation of this deal is dependent on the mill.

"We sold you certain sizes and lengths, such as we had specified. Your acceptance contemplates something entirely different to-wit, instead of sizes ranging from 3/8 inch to 7/8 inch rounds, various amounts of each, you want 400,000 pounds 3/8 inch round and in lengths of 50 to 60 feet. Our specifications are 10 Carbon. Your specifications are intermediate grades as per standard specification for concrete reinforcement bars.

"If the mill agrees to the change in specifications, we will furnish at 2.486 per hundredweight, base f. o. b. cars St. Louis, shipment within four months.

"Terms. On account of change of size and quality, and if such change is made, material would be...