87 Mo. App. 503 | Mo. Ct. App. | 1901
The appellant sued the respondent on the following written instrument:
“It is agreed that the American Publishing and Engraving Company will not be held responsible for any provisions not embodied in writing herein, and that this contract can not be cancelled without the written consent of the said company.
“The American Publishing and Engraving Company, Syndicate Department, 146 to 150 Nassau street, and 2 to 6 Spruce street, New York: You are hereby authorized to furnish the undersigned for my exclusive use one cut and no duplicate and reading matter weekly to illustrate the merchant tailor business in the city of Springfield, State of Missouri, only, for the term of one year from the commencement of1 service, and until notified in writing to discontinue same, for which I agree to pay to your order at New York, the sum of seventy-five cents and postage for each cut, and twenty-five cents and postage for each duplicate at the end of each calendar month; matter sent is not to be duplicated to any other concern in my line of business in Springfield, Missouri.
(Name) “James Walker,
“Address 220 College street,
“Dated February 26, 1898. Springfield, Mo.”
The only defense interposed was that the contract was unilateral, not binding on the plaintiff and, therefore, not binding on the defendant. It should be remarked that he declined to receive the advertisements forwarded to him after he had notified the appellant not to send any more.
The testimony shows that the publishing and engraving company had engaged to pay its soliciting salesman thirty-three per cent commission for securing the order. On receipt of the notice from the defendant to ship no more cuts, the company informed him that it could not release him from the contract unless he would reimburse it for the commission which it had paid this salesman on the unexpired portion.
We regret that we are unable to concur with the learned judge who tried the case below, in his construction of the foregoing contract. Whether the act of the plaintiff’s agent in
The signatures of both parties to a written agreement are not always indispensable to its validity. In fact, a large portion of the commercial affairs of to-day are transacted upon orders or proposals signed by one party which becomes effective and binding when acted upon by the other. It would introduce inextricable confusion into business transactions to hold that agreements so made might be dispensed with at the caprice or will of one of the parties. United States v. Carlisle, Fed. Cases 14274; Mastin v. Grimes, 88 Mo. 478; Wordsworth v. Wilson,
The agreement in question, after the performance of it had been begun, was manifestly obligatory on the plaintiff for the full term of one year, and if it failed to furnish matter to defendant as stipulated for that term, it was responsible in damages. This being true, it was equally binding on him for the same period. In Lewis v. Mutual Life Ins. Co., 61 Mo. 534, a contract was construed whereby the plaintiff agreed to become the general agent of the defendant to work exclusively for it for five years. There were various other provisions, such as that he should furnish a full corps of energetic subagents, which need not be noticed. The company went out of business during the time of the contract and, when sued by the plaintiff to pay for his services during the full period, claimed that it did not bind itself to continue in business for five years and that its inability to execute the whole term was no breach. It was conceded the company did not covenant directly to carry on business for any certain time. Nevertheless, it was held bound fob the whole period. The language of the opinion is applicable to the present controversy: “It very frequently happens that contracts on their face and by their express terms appear to be obligatory on one party only; but in such cases, if it be manifest that it was the intention of the parties, and the consideration upon which one party assumed an express obligation, that there should be a corresponding and correlative obligation on the other party, such corresponding and correlative obligation will be implied.” The same doctrine was laid down in Glover v. Henderson, 120 Mo. 367.
The authority chiefly relied on by the respondent is Jones v. Durgin, 16 Mo. App. 370. But that case expressly recognizes the validity of instruments, like the one in question, and
It does not follow, however, that the plaintiff is entitled to recover the full price of the advertising matter sent after it was notified to stop sending it On the defendant’s refusal to accept any more cuts, it should have foreborne to ship them. Under such circumstances the party notified has no right to continue to perform the contract and thus enhance the damages. The measure of the plaintiff’s recovery is the profit it should have realized had it been permitted to continue to furnish the cuts to the end of the year. 7 Am. and Eng. Ency. of Law, (2 Ed.), 153; Moline Scale Co. v. Bend, 52 Ia. 307; Danforth v. Walker, 37 Vt. 239; Ward v. Thomas, 64 N. Y. 107; McGregor v. Ross, 96 Mich. 103; Collins v. Delaport, 115 Mass. 159.
The judgment is reversed and the cause remanded,