770 S.W.2d 493 | Mo. Ct. App. | 1989
Plaintiff appeals from the trial court’s order sustaining defendant’s motion to dismiss. We affirm.
Plaintiff filed a petition
Plaintiff contends the trial court erred in dismissing his amended petition for failure to state a cause of action. In reviewing such a dismissal, we determine whether the facts pleaded and reasonable inferences to be drawn from the allegations, when viewed in the light most favorable to the plaintiff, demonstrate any basis for relief. We accept as true all facts averred in the petition, construe all averments liberally and favorably to the plaintiff and determine whether they invoke principles of substantive law upon which relief can be granted. San Luis Trails Association v. E.M. Harris Building Co., 706 S.W.2d 65, 67 (Mo.App.1986). However, pleadings must state facts, not conclusions; they are “not to serve as ambushes.” Bergel v. Kassebaum, 577 S.W.2d 863, 867 (Mo.App.1978).
The essential elements of a contract are competent parties, proper subject matter, legal consideration, mutuality of agreement and mutuality of obligation. Marc’s Restaurant, Inc., v. C.B.S., Inc., 730 S.W. 2d 582, 585 (Mo.App.1987).
With these principles in mind, we examine plaintiff’s petition. Count I included the following allegations: plaintiff was an employee of an office supply company, the majority stockholder of which was defendant; defendant “inquired of [plaintiff] if [he was] interested in keeping the business going and [plaintiff] so assented”; “[defendant ... requested [plaintiff] to paint the company business or he would
We believe these allegations, viewed in the light most favorable to plaintiff, are insufficient to plead a contract capable of enforcement by a court.
In Count III, plaintiff alleged that the actions described in Count I amounted to tortious interference with contract. The person interfering with and breaching the contract, according to plaintiff, is one in the same; thus, the court did not err in dismissing Count III. See Restatement Second, Torts § 766 (1977).
Plaintiff also contends the trial court erred in refusing to allow him to amend his petition a second time. The decision to allow an amended petition is discretionary. Smith v. City of DeSoto, 634 S.W.2d 204, 205 (Mo.App.1982). In view of the many challenges to plaintiff’s original and amended petitions, plaintiff’s lack of diligence in his previous attempts to amend, and the fact that the second amended petition is virtually identical to the original and first amended petitions, we conclude the trial court did not abuse its discretion.
We are not unmindful that the essential terms of a contract, though not alleged in the petition nor agreed to by the
Judgment affirmed.
. Another individual joined in the petition with plaintiff, but subsequently withdrew.
. Defendant responded to the petition arguing not only that it failed to state a cause of action, but also that the purported contract violated the statute of frauds.
. Plaintiffs amended petition refers to an attached exhibit. In the legal file presented to us, no such exhibit appears.