CHASE GILLEN, Appellant, v. W. E. BAYFIELD
Division One
February 11, 1932
46 S. W. (2d) 571 | 681
HYDE, C.—This is an action for damages for breach of an alleged contract to sell plaintiff a 40 per cent interest in a hotel corporation and employ him as manager.
On the day defendant made the contract with Sodini he wrote out the proposition he made to plaintiff, which was:
“I agree to sell to Mr. Charles Gillen 50% of the capital stock of the Majestic Hotel Corporation of St. Louis, Missouri, at the same рrice and terms that the stock is sold to me by Mr. Sodini; Mr. Charles Gillen agrees to pay his 50% of the purchase price in cash, and 50% of the working capital. The deal is to be closed February 1, 1925. But Mr. Gillen must notify me that he will take the stock as above outlined not later than the 20th of January, 1925. Salaries to be $950.00, as follows: $650.00—$300.00 per month. Mr. Gillen $650.00 and Mr. Bayfield $300.00, and railroad fare to and from Terre Haute, Indiana. Mr. Gillen to have rooms and board for himself and family.
“(Signed) W. BAYFIELD.”
Defendant was very anxious for plaintiff to go into the deal, but plaintiff either was doubtful about going into it or was unable to make arrangements to raise the money. Defendant sent plaintiff letters and telegrams urging him to go ahead with the deal and offering to help him raise the money. The following were some of the telegrams:
January 12, 1925: “Terre Haute, Indiana. To Chas. Gillen. ‘Please wire if you are sure of going in on the Majestic. Have several parties anxious to join me. Prefеr you but would like to know. Please wire. W. E. Bayfield, Deming Hotel.‘”
January 16, 1925: “If you would prefer not to buy in St. Louis it will be OK with me, but please let me know as soon as possible. W. E. Bayfield.”
January 20, 1925: “IF I must put up Ten Thousand Dollars more than my share, will expect stock for it, giving you contract to purchase it at cost price. Am willing to advance this, but must not be put off again, time is too short. W. E. Bayfield.”
There were two other telegrams on January 21st by which defendant arranged for plaintiff to meet him at Terre Haute, Indiana, on January 22nd. At that time plaintiff, definitely, advised defendant that “he would be short, in raising enough cash to buy a half interest, because he would have to take some notes” to make a sale of his Kansas hotel interest. Defendant then agreed to let plaintiff in the deal with a purchase of less than half of the stock. Defendant signed and delivered to plaintiff the following proposition, which plaintiff claims was a modification of the proposition of January 9th, to-wit:
“This agreement made and entered into this 22nd day of January, 1925, by and between W. E. Bayfiеld, of Terre Haute, Indiana, and Charles Gillen, of Wichita, Kansas; Mr. W. E. Bayfield having purchased the entire capital stock of the Majestic Hotel Company, a corporation organized under the laws of the State of Missouri, this stock being the entire capital stock representing the ownership of the Majestic Hotel, St. Louis, Missouri.
“Mr. Charles Gillen desires to purchase a portion of the stock of the Majestic Hotel, and Mr. W. E. Bayfield agrees tо sell to Mr. Charles Gillen any portion of the stock up to 50% and not more than 50% of the stock, upon the following conditions:
“Mr. Charles Gillen is to purchase the stock at the same price and under the same conditions that Mr. W. E. Bayfield has purchased the aforesaid stock.
“Mr. Gillen is to have the management of the hotel and give it his entire time and personal supervision at a salary mutually agreed upon. [Here follow provisions concerning the mаnagement of the hotel and for plaintiff to sell out to defendant in case of disagreement.]
“This agreement to sell stock to Mr. Charles Gillen is subject to an agreement entered into by Mr. W. E. Bayfield on January 9, 1925, with Mr. Harry Sodini, it being understood that if Mr. W. E. Bayfield cannot effect this deal with Mr. Harry Sodini, in that event this agreement would become null and void and binding in no way to Mr. W. E. Bayfield. This agreement and conditions of sale are binding upon Mr. Charles Gillen, his heirs and assigns.
“(Signed) W. E. BAYFIELD.
“(Witness) GEORGE P. KOHLER.”
According to plaintiff‘s evidence, which was his own testimony, except the bank records, he sold his Kansas hotel interest for $25,000 in cash and $25,000 in notes; and in order to be on the scene, on the day the deal was to be closed between defendant and Sodini, drove from Wichita to St. Louis, a distance of some 500 miles, over rough and frozen roads, arriving on the evening of Friday, January 30th. He went to the Marquette Hotel and went to bed, first leaving a call for defendant at the Majestic Hotel. About nine o‘clock that night defendant “called him on the phone and asked him to come right down to the Majestic Hotel; that he told him that he was worn out, was ready for bed.” Plaintiff said that defendant told him the deal would have to be closed the next morning; and that he told defendant that he had to go to East St. Louis to get some more money in order to raise his $40,000 in cash, but would be at the Majestic at ten o‘clock in the morning. He said he had $25,000 on deposit in the National Bank of Commerce in St. Louis; that he went the next morning (Saturday, January 31st) tо the Southern Illinois National Bank in East St. Louis and arranged for enough money there to make a balance of $15,000 in that bank; that he called defendant a few minutes before ten A. M. from the East St. Louis bank and told him he had the money and would be there as soon as he could drive over; and that he got to the Majestic Hotel a few minutes after ten o‘clock. He found defendant very angry. He said he had been sitting there all morning waiting for plaintiff; that he was giving him a lot оf anxious moments; that he had just telephoned to Chicago and arranged to get the balance of the money there; and that he was going to take care of it himself and was not going to bother with plaintiff. Defendant and Sodini then went to an attorney‘s office and closed the deal. Plaintiff said that he moved to the Majestic Hotel that night, and had some further conversation with defendant during the next few days, but that defendant refused to sell him any of the stock and finally ordered him out of the hotel.
The records of the Bank of Commerce, produced by plaintiff, showed that $25,000 was deposited to his credit there on January 26, 1925. The records of the East St. Louis bank, which plaintiff also offered in evidence, showed that on January 30, 1925, three deposits were made to plaintiff‘s account, totaling $11,500, which made his balance on that day $15,121.50.
Defendant‘s evidence was further that plaintiff was in the Majestic Hotel Saturday morning, and gave him to understand that he had been disappointed in getting his money and neither offered him the money, nor said he had it, nor asked to buy the stock; that two or thrеe days later, plaintiff was arguing with defendant about the deal and defendant offered to close the deal with him then; but that plaintiff backed away and left, saying that defendant would never get his money. It was further shown that defendant only kept the hotel until March 10, 1925, when he resold it to Sodini. Defendant said he sold it, at a considerable loss, in order to meet his obligations incurred in purchasing it. It was also shown that on April 11, 1925, plaintiff and a Mr. Olsen bought the hotel stock from Sodini, for $5,000 less than defendant had paid for it, and that they operated it until March 10, 1926, when plaintiff sold out his half interest to Mr. Olsen at a profit. During the time plaintiff owned it with Olsen, he was the manager and drew a salary of $500 per month and was, also, furnished meals and rooms for himself and family.
The verdict of the jury was for defendant. From the judgment on this verdict plaintiff appeals. The court refused to give plaintiff‘s Instruction No. 1, purporting to cover the whole case, but modified it in several respects, and gave it as modified. It is the refusal of this instruction and the giving of it as modified that the plaintiff assigns as error. This instruction, as offered, proceeded
“And if you further find and believe from all the evidence that on said 31st day of January, 1925, [or thereafter, and within a reasonable time after said purchase by defendant from Sodini] (if you find that defendant did purchase all of said capital stock of said Hotel Company frоm Sodini), plaintiff was ready, willing and able to buy from said defendant 40 per cent of said stock so acquired by defendant from said Sodini, and offered to take [and pay for] 40 per cent of the stock acquired by defendant from said Sodini upon the terms and conditions as defendant had obtained all of said stock from Sodini, and in compliance with said agreement of January 22, 1925, above mentioned, and that the defendant refused to deliver to the plaintiff said stock, you are instructed that plaintiff is entitled to recover a verdict at your hands.” (Words in brackets were omitted from modified instruction.)
This paragraph was modified to read as follows:
“And if you further find and believe from all the evidence that on said 31st day of January, 1925, plaintiff was ready, willing and able to buy from said defendant 40 per cent of said stock so acquired by defendant from said Sodini, and offered to pay defendant $40,000 and to take 40 per cent of the stock acquired by defendant from Sodini, upon the same terms and conditions as defendants had obtained all of said stock from Sodini and in compliance with said agreements of January 9, 1925, and January 22, 1925, above mentioned, if you find they were made, and demanded that defendant deliver to him said stock, and that the defendant refused to accept said $40,000 and deliver to the plaintiff said stock, then you are instructed that plaintiff is entitled to recover a verdict at your hands.” (Words in italics added to modified instruction.)
Aрpellant‘s contention is that plaintiff‘s contract gave him the right to purchase the stock after defendant had obtained it from Sodini and that he was entitled to a reasonable length of time after defendant closed the deal and obtained the stock from Sodini to pay plaintiff for it. He says that the modified instruction erroneously required him to offer to pay defendant for it before defendant had obtained it. He also says that the instruction as mоdified required that plaintiff actually tender the $40,000, but that all that was necessary was that plaintiff was ready, willing and able to buy
The essential elements of a contract are: “(1) Parties competent to contract, (2) a subject-matter, (3) a legal consideration, (4) mutuality of agreement, and (5) mutuality of obligation.” [13 C. J. 237, sec. 1. See, also, 6 R. C. L. 586, sec. 4.] If we take plaintiff‘s view of the deal that the two documents signed by defendant were intended to be a completed contract giving plaintiff the right, after defendant had obtained the stock, and paid for it, to thereafter buy any amount he desired up to 50%, then the court should have instructed the jury to find for defendant. Such a contract would be unenforceable and void, for want of mutuality, in fact no contract at all, because plaintiff would not be bound by it to do anything. As this court said of such a contract: “Mutuality of contract means that an obligation must rest upon each party to do or permit to be done something in consideration of the act or promise of the other, that is, neither party is bound unless both are bound.” [Hudson v. Browning, 264 Mo. 58, 65, 174 S. W. 393. See, also, Huttig v. Brennan, 41 S. W. (2d) 1054, 1062, and authorities there cited.]
Another elemental rule, of contracts, is that it requires both an offer and an acceptance to make a contract. The written propositions of January 9th and January 22nd were signed only by defendant and plaintiff gave no consideration for either of them. Even if we considered them as options:
“An option confers no rights unless it possesses the elements necessary to an enforceable contract. One of these requisites is a consideration. Therefore, unless an option is supported by a consideration it is for practical purposes of no greater efficacy than a continuing offer.” [6 R. C. L. 603, sec. 25.] “Frequently a proposal is made to be accepted within a specified time. Such a proposal constitutes a continuing offer. The effect of such an offer hаs given rise to much discussion, and was for a time involved in doubt. At present, however, it appears to be settled that such an offer confers on the offeree no greater right than is conferred by an ordinary offer; that is, the right to accept before the offer is withdrawn. A continuing offer is not a contract because it does not necessarily involve the assent of both parties, which is essential to the formation of the contract.” [6 R. C. L. 603, sec. 25. Seе, also, Secs. 26 to 32; 13 C. J. 293, sec. 103.]
Taking this view which is more favorable to plaintiff than his own theory (because it leaves a question to submit to the jury) the proposition of January 9th was an offer to sell plaintiff 50% of the capital
The modified instruction only required the jury to find that plaintiff, on January 31st, offered to pay his part of the cash payment and to take 40% of the stock upon the terms and conditions of the contract with Sodini and the agreements of January 9th and 22nd. (It may be here noted that plaintiff‘s evidence does not show that he offered to or could put up any portion of the working capital, as required by the January 9th proposition, although it is his theоry that the terms of that proposition remained in force except as to the amount of stock he would take, or that he offered to personally execute the notes for the balance of the purchase price to Sodini or assume any liability for them.) The instruction, as modified, still proceeds upon the theory that a valid contract was made, prior to the 31st, by the agreements of January 9th and January 22nd, for the breach of whiсh plaintiff could recover unless he was unable or unwilling to perform. It permits a recovery upon a finding that plaintiff offered to go ahead with the deal at any time during Saturday, the 31st instead of limiting a recovery for plaintiff to a finding that he accepted defendant‘s offer at a time prior to its withdrawal, which, the evidence shows, was shortly after ten o‘clock that morning. A judgment will not be reversed because the court erroneously gave an instructiоn which was too favorable to an appellant. [Cazzell v. Schofield, 319 Mo. 1169, 1188, 9 S. W. (2d) 580; Heigold v. United Railways Co., 308 Mo. 142, 154, 271 S. W. 773; Ellis v. Metropolitan Street Railway Co., 234 Mo. 657, 679, 138 S. W. 23; Wertheimer-Swarts Shoe Co. v. United States Casualty Co., 172 Mo. 135, 155, 72 S. W. 635; Teasdale v. Stoller, 133 Mo. 645, 652, 34 S. W. 873; Smith v. City of St. Joseph, 122 Mo. 643, 27 S. W. 344; Berry v. Wilson, 64 Mo. 164.]
The judgment is therefore affirmed. Ferguson and Sturgis, CC., concur.
PER CURIAM:—The foregoing opinion by HYDE, C., is adopted as the opinion of the court. All of the judges concur.