83 Mo. App. 411 | Mo. Ct. App. | 1900
This is an action to recover damages on account of the breach of a verbal contract. The allegations of the petition were: (1) That one, Bean, executed to defendant Gilbert, agent for the other defendant, a chattel mortgage upon certain furniture in the Normandy Hotel to secure the payment of a promissory note for $791.51. (2) That Bean executed to plaintiff, as trustee, a deed of trust covering the property specified in the said chattel mortgage, previously executed to defendant Gilbert, to secure two notes, one to the Midland National Bank for $552.38 and the other to Mrs. Jenney for $2,448.20. (3) That on May 5, 1897, the defendant advertised said property for sale under said chattel mortgage and seven days thereafter entered into an agreement with plaintiff to the effect, first, that the -defendant would proceed to sell said mortgaged property in accordance with said advertisement-, and at said -sale it should be- bid in by the defendant, The Home Industrial Company, in its name, provided an outside purchaser could not be induced to bid the reasonable value of said property and if so bid, then in the
The agreement pleaded discloses it to have been the intention of the parties thereto that if at the foreclosure sale of the mortgaged property no one bid the alleged reason-able
The sale, of course, cut off Bean’s equity of redemption. But what- relation, if any, did the plaintiff, in his quality as trustee, sustain to the property after the foreclosure sale and purchase by the Home Industrial Company? But for the agreement his interest as junior mortgagee would have been foreclosed. His interest, under the agreement, survived the foreclosure sale, or, if it did not, it re-attached the instant the title passed to defendant under the foreclosure sale. The interest of the plaintiff after the sale was not different from what it was before the sale. The property was held by defendant as a security for the payment, first, of its own debt- and then, next, that of the other beneficiaries. The jus disponendi was restricted and 'hampered by the agreement. The title acquired by the defendant at the foreclosure sale was impressed with the agreement. Hnder the agreement a re-sale could not be made without the consent of the plaintiff. In case defendant had an offer for the property he was required to submit that to plaintiff and if not satisfactory plaintiff had a right to take it at a greater price and thereby prevent a sacrifice of it to his injury. His relation to the property was improved by the agreement. His position now was better than that occupied by him before the foreclosure
But the defendant contends that the agreement pleaded is a nudum, padum, and therefore it is not bound by it. The general rule is, that in order to support an action the promise must have been made upon legal consideration moving from the promisee to the promissor; there must be either a benefit to the maker of the promise or the waiver of some legal right, a loss, trouble or inconvenience to, or a charge or obligation resting upon the party to whom the promise is made. Givens v. Corse, 20 Mo. App. 132; Brownlow v. Wollard, 66 Mo. App. 636; Houck v. Frisbee, 66 Mo. App. 16; Block v. Elliott, 1 Mo. 215; Halsa v. Halsa, 8 Mo. 303; Hudson v. Busby, 48 Mo. 35; Williams v. Jenson, 75 Mo. 681; Beach on Contr., sec. 5 and note 1. Consideration means not so much that one part is profited as that the -other abandons same legal right in the present, or limits his legal freedom of action in the future as an inducement for the act or promise for the first. It does not matter whether the party accepting the consideration has any actual benefit thereby or not- — it is enough that he accepts it and that the party giving it does thereby undertake some burden or lose something which in contemplation of law may be of value. Webb’s Pollock on Contr., 167. It is well settled that a promise is a sufficient consideration for a promise. Moss v. Green, 41 Mo. 389; Lindell v. Rokes, 60 Mo. 249. A promise to do a thing is just as valuable a consideration as the actual doing of it would be. The promises to constitute a consideration for each other must be concurrent or become binding at the same time, otherwise each will be without consideration at the time it is made and both must be nuda pada.
Somewhat similar in character are the considerations which consist of conditional promises; as, for instance, where a person promises to do something for a reward, but the other party only binds himself to pay the reward upon the happening of an event which may not be under the contract of either party. In the one case, the promise depends for its fulfillment upon a condition precedent; in the other it is liable to be defeated by a condition subsequent. In neither case does the conditional character prevent it from forming -a sufficient consideration for promises given in return. Clark on Oontr., sec. 75, and eases cited. The consideration for a promise may well be contingent; that is, it may consist in the doing of something by the promisee which he need not do unless he chooses, but which being done by him, the contract is complete and the
When tested by the. principles just referred to, have we a valid and binding contract alleged in the petition? The promises were concurrently made. If what was promised by the plaintiff to be done for defendant constituted a legal consideration, then the latter’s promise was binding. Manifestly, what was promised by the plaintiff to be done entailed upon him and his beneficiaries considerable detriment. Wharton on Oontr., sec. 505. Not only this, but the plaintiff, by his implied promise not to bid at the foreclosure sale, altered, if he did not waive, an existing right, to' wit: that to bid at such sale. Webb’s Pollock on Contr., 177. Looking at the mutual promises and undertakings of the parties as pleaded, in the light of the principles just referred to, and we can not doubt that the same constituted a valid and binding contract based upon a sufficient consideration. Nor do we discover any reason why the defendant is not liable in damages for the alleged breach thereof. •
The case of Bank v. Bennett, 76 Pa. St. 402, relied on by defendant, while, in some respects, quite analogous to the present case, is to be distinguished from it. In that
There was a trial in which plaintiff had judgment and defendants appeal. The defendants assign as error the action of the court in giving an instruction for the plaintiff which declared that the measure of damages was the reasonable market value of the property, less the amount of the principal, interest and cost due on defendants’ mortgage at the time of the foreclosure sale. The defendants’ fifth instruction asserted a like rule. The error, if error it was, was common; and therefore neither party can complain of the action of the court in that regard. This shuts out any inquiry by us respecting the correctness of a rule which both parties asked the court to declare.
If the contract was valid, as we have concluded it to be, then the evidence adduced establishing a breach of it was ample to justify the verdict. Several other points have been discussed in the briefs of counsel for defendants, but these we have considered and find without merit. The judgment will accordingly be affirmed.