Fire Sprinkler Fabricators Corp. v. Bert's Refrigeration, Inc.

690 F. Supp. 818, 1988 U.S. Dist. LEXIS 7889, 1988 WL 78694
CourtDistrict Court, E.D. Missouri
DecidedJune 28, 1988
DocketNo. 86-1760C(3)
StatusPublished

This text of 690 F. Supp. 818 (Fire Sprinkler Fabricators Corp. v. Bert's Refrigeration, Inc.) is published on Counsel Stack Legal Research, covering District Court, E.D. Missouri primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Fire Sprinkler Fabricators Corp. v. Bert's Refrigeration, Inc., 690 F. Supp. 818, 1988 U.S. Dist. LEXIS 7889, 1988 WL 78694 (E.D. Mo. 1988).

Opinion

MEMORANDUM

HUNGATE, District Judge.

This matter is before the Court to determine the merits of plaintiff’s claim against defendant, and defendant’s counterclaim against plaintiff, after a one-day nonjury trial.

Plaintiff brings this action pursuant to 28 U.S.C. § 1332 to recover on account for materials and equipment used to install a fire sprinkler system sold to defendant. Plaintiff also seeks interest and court costs. In its answer, defendant argues it is entitled to a set-off on the grounds that

(a) plaintiff failed to deliver the goods within the time agreed upon between plaintiff and defendant and within a reasonable time, thereby causing delay and expense to defendant’s work on the project for which these goods were ordered, and further required defendant to purchase extra and additional materials and supplies in order for defendant to perform the work;

(b) the goods as sold and delivered to defendant were defective and not fit or suitable for their intended use and purpose, which intended use and purpose were known to plaintiff; that as a direct and proximate result thereof, defendant was required to return these goods to plaintiff [820]*820who replaced them with substitute goods which also were not fit for their intended use and purpose because of damage caused by installation of the defective original materials; and

(c) plaintiff has billed and charged, and not given defendant credit for goods which were never delivered to defendant in accordance with defendant’s purchase order for these goods, and defendant was required to obtain these goods elsewhere at defendant’s cost and expense.

Defendant argues points (a) and (b) in its counterclaim and requests judgment against plaintiff in the amount of $30,-000.00, plus interest and costs.

Having carefully considered the pleadings, testimony, stipulation, evidence, and the entire record herein, the Court hereby makes and enters the following findings of fact and conclusions of law.

Findings of Fact

1. Plaintiff, Fire Sprinkler Fabricators Corporation, is a Kansas corporation with its principal place of business in Wyandotte County, Kansas, and is licensed to do business in Missouri.

2. Defendant, Bert’s Refrigeration, Inc., is a Missouri corporation with its principal place of business in St. Louis County, Missouri.

3. Plaintiff sells components, material, hardware, and equipment used in fire sprinkler systems.

4. Defendant, also formerly known as Gateway Fire Sprinkler, is a mechanical, electrical, plumbing, and fire sprinkler system contractor.

5. On June 7,1985, plaintiff and defendant entered into an agreement whereby plaintiff agreed to sell and defendant agreed to buy various materials and equipment for the installation of a fire sprinkler system at 3801 McKelvey Road, Bridgeton, Missouri. The contract price was $62,-500.00 exclusive of freight charges. Bert Schonlau, president of defendant, testified that $62,500.00 was a reasonable price for the materials and equipment.

6. At the time of the agreement between plaintiff and defendant, the Kroger Company was leasing a warehouse at 3801 McKelvey Road. As part of the lease conditions, Kroger required that the warehouse, specifically the freezer and office areas, have sprinkler fire protection.

7. In a purchase order dated May 21, 1985, handwritten by Mr. Schonlau, all materials were to be shipped from plaintiff by June 20, 1985, the completion date. In a formal letter dated June 20, 1985, from defendant to plaintiff, the completion date of plaintiff is stated to be June 28, 1985. Although a discrepancy exists regarding the completion date, the Court finds June 28, 1985, to be the completion date as reflected in the formal follow-up letter to plaintiff.

8. Initially, the Kroger Company requested defendant have the fire sprinkler system completely installed and ready for inspection by the end of July or the first of August. However, Kroger changed defendant’s completion date to September 1, 1985, because some additional work on the warehouse was being done for Kroger.

9. An invoice dated June 20, 1985, for the contract price of $62,500.00, was sent to defendant. The invoice indicated that freight charges were to be billed later. The balance on the bill was due on July 20, 1985. A stamp appeared on the invoice stating that “a service of llk% per month on any part thereof will be charged on all invoices that are past due.” However, there is no agreement in writing that defendant agreed to pay the IV2% per month interest.

10. Plaintiff delivered some of the equipment and material for the fire sprinkler system, including piping and fittings, by June 28, 1985. The material and equipment not delivered were Viking Valve Company equipment, valves, other fittings, air compressors, and equipment for the apparatus room.

11. After June 28, 1985, Glen Sanders, an employee of plaintiff, made numerous reassurances to defendant that the equipment and materials would be shipped.

[821]*82112. Plaintiff’s invoices dated in July indicated that additional material was sent to defendant not provided in the original contract in the total amount of $481.81. In addition, shipping charges for all materials and equipment shipped totalled $1,016.57.

13. In August, Mr. Schonlau contacted a representative at Viking Valve Company and Glen Sanders concerning plaintiffs failure to complete delivery of all materials and equipment by the completion date of June 28, 1985. As a result of the conversations, Mr. Schonlau and the subcontractor were instructed to buy the needed materials and equipment on the open market.

14. Mr. Schonlau testified that the following items were not delivered by plaintiff to defendant, but were required by the contract: (a) two air compressors in the amount of $974.85 each, for a total amount of $1,949.70 (an air compressor was shipped to defendant but was the wrong size so it was shipped back to plaintiff); (b) a Deltech heatless dryer and an Asco water valve in the total amount of $432.32; and (e) an LPS-20 Deltech heatless dryer in the amount of $1,872.25. Mr. Schonlau further testified that extra material and labor, in the amounts of $1,017.74 and $703.12, were supplied by Automatic Fire Control Systems, Inc., the subcontractor performing the installation, because of plaintiffs failure to provide such material. A total amount of $5,975.13 for material and labor used to install equipment not provided by plaintiff was incurred by defendant.

Plaintiff concedes that one of the air compressors in the amount of $974.85, and the $1,017.74 for material and equipment supplied by Automatic Fire Control Systems, Inc., should be offset against the total amount requested by plaintiff.

15. Mr. Schonlau testified that defendant had paid Automatic Fire Control Systems, Inc., the amounts of $1,017.74 and $703.12 for extra material and labor provided to defendant. However, the amount of $1,017.74 has not been paid to Automatic Fire Control Systems, Inc., according to Wally Tierney, an employee of Automatic Fire Control Systems, Inc.

16. Mr. Schonlau testified that there were work stoppages on the project because defendant did not have adequate material to complete the job. Mr.

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Bluebook (online)
690 F. Supp. 818, 1988 U.S. Dist. LEXIS 7889, 1988 WL 78694, Counsel Stack Legal Research, https://law.counselstack.com/opinion/fire-sprinkler-fabricators-corp-v-berts-refrigeration-inc-moed-1988.