148 Mo. App. 327 | Mo. Ct. App. | 1910
Both parties are incorporated companies, the plaintiff having succeeded to all the interests, contracts and rights of its predecessor, the St. Louis Service & Horse Company. The action is to recover damages for the refusal of defendant to comply with a contract alleged in the petition to be “embodied in certain letters, dated as follows: One September 15, 1905; two September 29, 1905, and one September 30, 1905.” It is alleged that by the contract plaintiff agreed to furnish and defendant to use and pay for four storm buggies with horses and harness, to be delivered every day for a period of two years, beginning October 15, 1905. The demand is resisted on the theory the contract was not for two years, but was terminable at defendant’s option and was terminated March 1, 1906. The court below at defendant’s request, directed a verdict for plaintiff for $10.93, as being the amount defend-' ant would owe if its contention were right; "whereas plaintiff asked judgment for $3400, as the amount that would have been earned if the contract was for two years and had been carried out. The averment of the petition is defendant notified plaintiff it no longer desired the latter to furnish buggies under the contract after February, 1906, but notwithstanding said notice plaintiff stood ready and willing to comply with the contract to the date of its expiration, two years from October 15, 1905. The four letters said to contain the contract are these:
“Mr. Anderson tells me that you will probably make some change in your present contract with reference to storm buggies for your salesman. As he no doubt explained to you, I have organized a company for the special purpose’ of supplying high class equipment for work of this kind.
“I understand you will want six complete outfits, one of which will be maintained at Wellston. I beg to quote you a rate of $45 per calendar month for each outfit, contract to run two years from daté of commencement, with the privilege of extension beyond this period at the same rate, or to reduce the number of buggies at the expiration of two years if deemed expedient. This rate contemplates that the equipment shall be delivered to the salesman at the store, or to be called for, as you may elect. It also contemplates the supplying of equipment that shall be entirely satisfactory to you. You may receive bids as low, or perhaps lower than I have quoted, but I feel quite sure that it will be difficult for any oue else to furnish you with a more satisfactory service than I am able to furnish. I am familiar with the requirements of this class of work, and have in Mr. Anderson one of the most competent assistants that can be found in the city.
“If you should elect to accept this proposition, I shall require a little time in which to get the equipment together, which will all be new and strictly first-class.
“Very truly yours,
“Union Service Company,
“By John M. Allen,' President.”
“My dear Mr. West: Sept. 29, 1905.
“With reference to your talk yesterday with Mr. Anderson in the matter of supplying storm buggies for your salesmen, I have decided to make you a price on the entire outfit as described in my letter of the 15th inst., for Forty-three dollars ($43.00) per month for each and every working day in the calendar month.
“I am quoting you an excéptionally close price and propose to furnish you a class of equipment that your salesmen will be proud of.
“Sincerely yours,
“Union Service Company,
“By John M. Allen, President.”
“St. Louis, Mo., Sept. 29, 1905. “J. M. Allen, Pres. St. Louis Service & Horse Co., St.
Louis, Mo.
“Dear Sir: In answer to your proposition to us under date of September 1.5th and 29th, beg to say that Ave will accept same for the equipment of four complete outfits for our salesmen’s use as described in your letter for the consideration of $43.00 per month each, and any additional outfits required by us for salesmen’s use will be furnished by you at the same price.
“Three outfits to be delivered to our place of business and one to our west end salesman at or near Wells-ton on the morning of every working day at seven o’clock a. m.
“We will agree to employ this service from you as long as the price and outfits are satisfactory. The above outfits to be furnished to us beginning October 15th, 1905.
“Yours truly,
“Moffet-West Drug Co.,
“C. H. West, Secretary,”
“Sept. 30, 1905.
“Dear Sir: I am in receipt of your favor of the 29th accepting our proposition of September 15th and 29th, whereby we will furnish you with four storm buggies,
“We have to-day placed our order for these outfits and will do everything we possibly can to deliver them to you on the morning of the 15th, as above indicated.
“Thanking you for the contract, and assuring you that we shall leave nothing undone to make our relations satisfactory, believe us,
“Very truly yours,
“Union Service Company,
“By John M. Allen, President.”
The petition alleges the terms of the contract said to have been formed by those letters as follows:
“Plaintiff states that during the month of September, 1905, the St. Louis Service & Horse Company, a co-partnership then doing business in the city of St. Louis, entered into a certain two-years contract with defendant, whereby it was agreed that said St. Louis Service & Horse Company should furnish defendant Avith four (4) storm buggies with horses and outfit complete, three (3) to be delivered at the place of business of the defendant in the city of St. Louis, and the other one (1) to be delivered as defendant might direct, at or near Wellston in the city of St. Louis, on each and every working day at seven o’clock a. m., at a rate of Forty-three Dollars ($43.00) per month each, to cover a period of two years beginning October 15, 1905; and that said contract further provided that defendant should have the privilege of ordering additional outfits upon a reasonable notice to plaintiff and at the same price, should defendant require them from time to time;
Subsequent to the correspondence plaintiff purchased six horses, six sets of harness and six new storm buggies to carry out the supposed agreement, began furnishing them to defendant October 15th and they were accepted and used until February, 1906. That is to say, four buggies and horses were, three of them being delivered each day at defendant’s place of business in St. Louis and one at Wellston. During said period defendant ordered another buggy and horse and this increase of service was alleged and conceded by plaintiff to have been within the agreement. It was used for a time and then by mutual consent was dropped. In February, 1906, defendant sold its business to the Merrill Drug Company, and on learning of the fact from a newspaper, plaintiff wrote defendant saying plaintiff presumed it would be notified in due time of the assignment of the contract to the Merrill Drug Company. Defendant wrote the following letter to plaintiff:
“St. Louis, Feb. 2áth, 1906.
“Mr. J. M. Allen, Pres. Union Service Company, Sixth
& Cerre Sts., City.
“Dear Mr. Allen: I am in receipt of your communication of yesterday and also of this morning. Your letter of to-day reached me while Col.' Walbridge was in our office. They wish to take over our contract for buggies with you, which Mr. Walbridge stated he would confirm to you to-day.
“As to furnishing Mr. Bausch with Meyer Bros, we, of course, have nothing to do with his arrangements with them. The service for buggies should be charged to Merrill Drug Company, beginning with yesterday morning, February 23rd, 1906.
“Very sincerely,
“Moffet-West Drug Co.,
“C. H. West, Secretary.”
The Merrill Drug Company used three vehicles for a while, but with the declaration that it had not agreed with defendant to take over the contract with plaintiff. In the course of a few months the Merrill Drug Company cut the service to two vehicles and then to one, which it used until the expiration of the alleged contract between plaintiff and defendant. Plaintiff did not release defendant from its obligation, whatever that was, but on March 27th, wrote this letter:
“March 27th, 1906;
“Gentlemen: We have this day effected settlement with the Merrill Drug Company for their February service, they having paid us $28.67; this for three buggies five days each and one buggy one day. You have paid us $132.40, account of February service; total received — $161.07; balance due $10.93. We mailed you a balance due bill a feAv days ago for $10.80.
“Kindly let us have your check so that we may close our February account, obliging,
“Yours truly,
“J. M. Allen.”
That letter was not ansAvered nor the demand paid. Plaintiff continued to send defendant bills for the amount of the total service called for by the contract, except the portion for which the Merrill Drug Company paid. There was contradictory testimony about what transpired between the officers of the two companies during the intervals between the first four letters, when it appears said officers negotiated in person as well as by correspondence. Defendant’s officer said he told the
If the parties made a contract and their minds definitely met on a two-years term, as there is much in the conduct of defendant and the letters written by it after it had sold its business to the Merrill Drug Company to prove, this contract and its terms are to be gathered from the entire correspondence and conduct of the parties, including an implied acceptance to be inferred
We can perceive no reason why the court should have instructed, at defendant’s request, for a verdict in "plaintiff’s favor for $10.93, as the amount due for service from the date February 22d, when defendant gave notice it would no longer need the service, to March first. If defendant was not bound for two years, it looks like it might cease accepting when it chose, and was no more bound by the letters until March first than to February twenty-second. The judgment for said sum possibly might prejudice plaintiff in another action; but as it was in plaintiff’s favor, carried the costs and perhaps is preferred as it stands, we do not feel at liberty to enter a modified judgment until a suggestion is made by plaintiff and defendant notified.
Judgment affirmed.