James Maccalum Printing Co. v. Graphite Compendius Co.

150 Mo. App. 383 | Mo. Ct. App. | 1910

GOODE, J.

(after stating the facts).. — The question is whether a valid contract was made between the parties by which plaintiff was entitled to be awarded the Avork of printing and binding defendant’s issue of its catalogue for the year 1908; that is to say, the third issue of catalogues. The objections to the contract are: First, it is unilateral, therefore not binding on defendant; second, it is so vague and uncertain as to be non-enforceable; third, the averments of the petition show the obligation imposed by the contract has been complied with by defendant. In our judgment, the alleged contract was in the highest degree bilateral and fully supported by a consideration moving from both parties. Plaintiff was to be paid a certain compensation per page for new matter in the catalogue of 1905, in consideration of the work of printing and binding; but that was only a portion of the consideration for which it agreed to print and bind the first issue. That Avork entailed on plaintiff preparatory expense to the amount of one thousand dollars for type and other material and the services of competent persons to print the volume in different languages. Part of the consideration for plaintiff’s agreement to print the first issue was the agreement by defendant to award plaintiff the work of printing “succeeding issues,” provided plaintiff’s price for such issues was no higher “than that of other responsible firms.” It will be perceived the consideration that moved from defendant to plaintiff for entering into the agreement consisted both of defendant’s agreement to pay |9.60 for each page of new matter, and of its agreement to employ plaintiff to print and bind succeeding issues in a given contingency, to-wit: that the price was not higher than the prices of other responsible concerns. How this contract can be considered unilateral and lacking in mutuality of consideration for the undertakings of the respective parties, we do not discern, though perhaps the more onerous obligation is on the defendant. It is said plaintiff did not bind itself to bid on, nor to print and bind the subsequent issues of the catalogue, which is true; for plaintiff might or might not bid for the work at its pleasure. Nevertheless defendant agreed, as part of the inducement to plaintiff to agree to print and bind the first issue, to allow plaintiff to bid for the work on succeeding issues, and if it made as low a price as other responsible firms, to give it the preference in awarding the job'. We do not understand that a contract supported when it is made by a full consideration moving to both parties, is unilateral, because one of the parties is accorded the privilege to do or not to do certain things in the future, if he agrees to render a consideration for the privilege. [Raymond v. White, 119 Mich. 438; 9 Cyc. 334; Giles v. Bradley, 2 Johns. Cas. 253.] If that were so, most or all contracts allowing an option to buy property within a stated period would be treated as invalid, whereas they are commonly treated as valid. The contention of respondent is equivalent to asking that the stipulation regarding future issues be treated as detachable from and independent of the agreement about the first issue; but this cannot be done, for, as we have said, an integral part of the consideration for plaintiff’s promise to print the first one was defendant’s promise to allow a preference to any bids plaintiff might put in for later issues. We hold the contract averred in the petition was perfectly mutual in its obligations and as far as that point goes, binding on both parties. It is not like cases which are cited Avherein agreements to furnish what goods a party might order during a certain interval and similar promises, were held unilateral. [Cold Blast Transportation Co. v. Bolt & Nut Co., 114 Fed. 77; Santaella v. Lange, 155 Fed. 719; Higbie v. Rust, 211 Ill. 233.] The difference consists in the fact that in the present case a consideration for defendant’s promise to give plaintiff’s bids for succeeding issues the preference, is found in plaintiff’s promise to print the first issue at a price alleged to have been less than plaintiff would have accepted for that job without the promise of a preference for bids it might make for the printing of future issues.

The more difficult question to determine is whether or not the alleged contract was sufficiently definite to be enforceable. Counsel for plaintiff cqntend it vested in plaintiff a perpetual right to bid at its pleasure for the printing and binding of issues of the catalogue as long as defendant published it, and to have the work of printing and binding all succeeding issues without limit or number awarded to plaintiff, if its price should be as low as that of other responsible bidders. The courts are prone to hold against the theory that a contract confers a perpetuity of right or imposes a perpetuity of obligation. Yet it seems to be the law in this state that where the intention to do this is unequivocally expressed, the contract will be upheld. [Blackmore v. Boardman, 28 Mo. 420; Wiggins Ferry Co. v. Railroad, 73 Mo. 389, 407; Harrington v. Railroad, 60 Mo. App. 223 and cases cited; Diffenderfer v. School Board, 120 Mo. 447, 25 S. W. 542.] But in this jurisdiction, as in others, courts will construe a contract to impose an obligation in perpetuity only when the language of the agreement compels that construction. [Diffenderfer v. School Board, l. c. 454 and citations.] The terms alleged in the petition to have been those of the contract declared on in the present case, Avould permit the interpretation that defendant had stipulated to award plaintiff the work of printing and binding all succeeding issues of the catalogue in the event plaintiff’s prices were as low as those of other bidders, but the language does not require us to adopt that interpretation; and it is unlikely the parties so intended. The petition charges defendant agreed if “plaintiff’s price for doing said work was not higher than that of other responsible firms on succeeding issues of said publication gotten out by defendant, that then defendant Avould give the work of publishing succeeding issues to plaintiff.” That language falls short of saying defendant agreed to give plaintiff the job of printing and binding all succeeding issues of the catalogue gotten out by the defendant, and is consistent with the view that defendant stipulated to award plaintiff the work of printing and binding two or more succeeding issues only; the parties understood plaintiff was to have at least that much preference. Courts set ought to avoid holding contracts too uncertain and indefinite for enforcement if it is possible to do so, and when the meaning of the terms of the contract is doubtful, it. ought to be interpreted most strongly against the party seeking to enforce it, unless the other party prepared it. [2 Paige, Contracts, sec. 1120.] For aught that appears, the plaintiff was as much responsible for the ambiguity of the term sought to be enforced as the defendant, and there can be little doubt that the alleged contract ought to be held not to confer the option on plaintiff in perpetuity to do the work of printing and binding every issue of the catalogue defendant might publish, for all time to come. On the other hand, it ought to be held to have conferred on plaintiff the right to be awarded the printing of two or more sueceeding issues if plaintiff bid for the wort and its bids were as low as those of other responsible concerns. In other words, plaintiff ought to be held to have been given the preference as to at least two issues. The expressions used is “succeeding issues.” It was not a compliance with this term to award plaintiff the work of printing one succeeding issue, because the plural form was used.. It -would be a compliance to award it the printing of two succeeding issues, and this, we think is the very least right which, in justice, can be allowed plaintiff under the alleged agreement. The action in the present case was for non-compliance with the contract in refusing to award plaintiff work on the second of the succeeding issues; wherefore the judgment will be reversed and the cause remanded.

All concur.