264 Mo. 58 | Mo. | 1915
Action for damages for alleged breach of contract. By the petition the damages are charged in the sum of $18,082.10. Plaintiffs were tie contractors doing business in Boone and Callaway counties. Defendant is a tie contractor doing business at Kansas City, Missouri. At the close of plaintiffs’ case the court gave a peremptory instruction to find for the defendant, and so entered judgment, from which the plaintiffs have appealed. The crux of the case is the validity or invalidity of the following contract :
“Memoranda of Agreement and Specifications for Cross ties between J. H. Hudson & Phillip A. Cain of Ashland and Guthrie, Mo., parties of the first part, and E. T. Browning and Company of Kansas City, Missouri, parties of the second part.
“Witnesseth: The said first parties agree to make and purchase and deliver to the second party, and the second party agrees to purchase and receive from said first parties, all the No. 1, hewn, white, post, burr oak or black walnut ties that said first parties may be able to purchase or make up, to 200,000 ties; commencing on this date and ending June 1, 1911. Said first parties do not bind themselves to make or purchase and deliver the full two hundred thousand ties, but they do bind themselves to use every effort at their command to secure as many of the 200,000 ties as their
“Specifications: All ties must be hewn from sound live and straight, white burr oak, or black walnut timber, free from wind shakes, rot, splits, and black or rotten knots. They must be hewn straight and smooth with the ends squared at right angles and must not vary more than one and one-half inches from eight feet in length.
“All the No. 1 ties must be of uniform thickness, which shall not be less than six inches nor more than seven inches and must be stripped of all bark. Sixty per cent of the No. 1 ties contracted for must have two hewn parallel faces, not less than eight inches wide at the narrowest part of each hewn face. Forty per cent of the the No. 1 ties may have two hewn faces less than eight inches, but not less than six inches at the narrowest part thereof, and in all other respects the ties must fill the foregoing specifications. Pole ties having a face from eight inches to six inches in width will be accepted under the same specifications as a tie with an eight inch face hewn from a large stick.
“The above are the specifications under this contract for No. 1 cross ties.
“For all No. 2 ties that may accumulate in the making of above ties (when they are sound, free from wind shakes, rot, splits, black or rotten knots and other
“Delivery: All ties must be delivered at any point on and along the outer edge of the right of way of the North Missouri Central Railway Company as surveyed, at and between the towns of Mexico, Columbia and Jefferson City, Missouri; delivery to commence at once and continue as fast as said ties can be secured. All the ties to be piled 2x7 in piles as high as first parties desire.
“Each tie shall be subject to inspection by second party, or their authorized agent, when piled on right of way, beginning May 1, 1910, and on the first day of each month thereafter during the life of this contract.
‘ ‘ Terms of payment to be cash or by check on the 15th day of each month (first payment being May 15, 1910) for all ties delivered and inspected up to the 10th day of each month; said second party agreeing to inspect all ties that may be piled on said right of way under this contract up to 10th day of each month.
“Witness, our hands and seals in duplicate (each being an original), this 25th day of February, 1910.”
Defendant’s counsel contend that the contract pleaded in the petition of plaintiffs is void for want of mutuality, and for that reason the court nisi was right in sustaining the demurrer to the evidence. An answer to this proposition disposes of the case. If the contract is void, there can be no action for damages for the breach thereof. The case therefore falls within a very narrow compass.
I. It should be noted that the present action only involves the profits that plaintiffs claim they would have made on No. 1 ties, and for that reason No. 2 ties are out of consideration. It must noteci that whilst the defendant does agree to receive and pay for 200,000 No. 1 ties at fifty-
The foregoing is the promise of the plaintiffs as outlined in their contract. The promise of the defendant, as indicated by the contract, was: “Said second party does however, agree to purchase and receive from said parties, the full 200,000 ties enumerated above, or any portion thereof, within the time limit stated above, if said first parties, with their best efforts, are able to secure that' many ties within said time limit, and at the price of fifty-five cents each tie. ’ ’
The time limit was June 1,1911. The date of contract was February 25, 1910. The evidence discloses some ties delivered and received under the contract. It also discloses a refusal to receive ties. These matters, however, are largely incidental. The vital question in the case is whether or not there was mutuality of agreement in this contract.
As stated the petition pleaded and counted upon this contract, and it was filed therewith as an exhibit. The defendant objected to the introduction of any evidence under the petition, because it failed to state facts sufficient to constitute a cause of action and then interposed its demurrer challenging the sufficiency of the facts shown. "Without the introduction in evidence of this contract plaintiff made-no case, and if it is void upon its face, their case is not helped by its introduction. ■
In our judgment this written instrument is void and non-enforceable for want of mutuality. Mutuality of contract is thus defined in 7 Am. & Eng. Ency. of Law (2 Ed.), at page 114;
Now applying this rule to the contract before us how stands the instrument? There is an undertaking to receive and pay for 200,000 No. 1 ties, but there is no undertaking by plaintiffs to deliver that number, or any other definite number. Defendant should not be bound to receive, unless plaintiffs were bound to deliver. That the plaintiffs conld not be sued for a failure to deliver 200,000 ties is evident, because they have not obligated themselves so to do. That defendant should not be obligated to take such number appears to us equally plain, because there was no mutuality of agreement such as made one promise a consideration for the other. The doctrine that neither should be bound unless both are bound determines the invalidity of this contract.
In a contract a promise is a good consideration for a promise, but there must be two promises to do .some definite thing or things. The idea is fully illustrated in 1 Parsons on Contracts (9 Ed.), at p. 486, whereat it is said:
■ “A promise is a good consideration for a promise. And it is so previous to performance and without performance. As, if one promises to become a partner in a firm, and another promises to receive him into the firm, both of these promises are binding, each being a sufficient consideration of the other. So a promise by a seller to refund in case of deficiency in the thing sold is a good consideration for a promise to pay for any excess therein. If one promises to teach a certain trade, this is a consideration for a promise’to remain with the party a certain length of time to learn,
To like effect 1 Page on Contracts, page 452: “Where the parties assume to make a contract in which a promise is the consideration for a promise, and analysis shows that one of the promises does not impose any legal duty upon the party making it, such promise is not a consideration for the other promise. This is what is often meant by saying that promises must be mutual.”
In Hamm on on Contracts, page 682, the rule’ is thus stated: “When the only consideration for a contract is that which arises from an exchange of promises, there must be mutuality of obligations, else the consideration is not sufficient. Both parties must be bound, so that, in case of breach by either, the other would have a right of action therefor. Thus, if, by reason of some informality or, disability, one of the parties to a contract consisting of mutual promises could not be sued thereon, the contract is void as to the other party also, since' there is no consideration for his promise.”
In Campbell v. Handle Co., 117 Mo. App. 19, the St. Louis Court of Appeals had up. for consideration a contract very similar to the one at bar. The contract there pleaded and the fácts in the trial are thus stated in the opinion:
“'Plaintiff was to cut and deliver at defendant’s factory in the city of Caruthersville, Missouri, ash timber of the length of six feet and two inches and four feet and nine inches, and none less than seven inches in diameter at the small end, at the price and sum of
The court thus disposes of the case:
“We think the contract is void for want of mutuality. Plaintiff was not bound to cut and deliver any specific number of cords of bolts of any specific number of feet of saw stocks, nor was he bound to cut all the ash timber on any particular tract of land or any tract of land. The law, in respect to this class of agreements, is well stated by Sanborn, Circuit Judge, in Cold Blast Trans. Co. v. Kansas City Bolt and Nut Company, 57 L. R. A. l. c. 699, 114 Fed. 77, as follows:
“ ‘But an accepted offer to sell or deliver articles > at specified prices during a limited time in such amounts or quantities as the acceptor may want or desire in his business, or without any statement of the. amount or quantity, is without consideration and void, because the acceptor is not hound to want, desire or take any of the articles mentioned.....Accepted •
“In Bailey v. Austrian, 19 Minn. 535, it was held that £a contract to supply the proprietor of a foundry with all the pig iron wanted in his business until a certain date specified, was not binding because it does not bind the purchaser “to want” any quantity whatever.’ ‘Mutuality of contract means that an obligation rests 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.’ [7 Am. & Eng. Ency. Law (2 Ed.), 114.]
“In Crane v. Crane & Co., 105 Fed. 869, it was held that ‘ an agreement by a wholesale dealer to supply a retailer during a certain time at a stated price with so much of a commodity as the purchaser might require for his trade and which leaves it practically optional with the purchaser to increase or decrease his orders with rise or fall of prices, as may be most to his advantage, and the corresponding disadvantage of the seller, was void for want of mutuality.’
“Plaintiff was not bound under the terms of the contract to furnish any specified number of cords of bolts nor any specified number of feet of saw stocks. If he found it profitable to himself to cut and deliver all of the ash timber on the tract of land, he might do so. If, on the other hand, he found it unprofitable, he was at liberty to cease cutting and making deliveries at any time. There was therefore no mutuality of contract and the court should have so declared as a matter of law by granting defendant’s instruction in the nature of a demurrer to the evidence.”
Had plaintiffs failed to perform their contract, and defendant had sued them for damages, it is clear that there could have been no recovery, because of the indefinite terms of the purported obligation. We see no good reason for making this opinion longer with excerpts from the books, or with further elaboration of a well-established rule. The contract is clearly void, and so being, furnished no basis for the present action. The judgment nisi is for the right party and is therefore affirmed. Blair, J., concurs; Bond, J., concurs in result; Woodson, J., concurs not only for the reasons expressed in the opinion, but also for reasons expressed in Reigart v. Coal Co., 217 Mo. 142.