*1 397 1195, Ry. Shain, 105 W. (2d) 915; C. So. Co. v. ex State Shain, Metropolitan 385, 391, Life Ins. Co. v. 334 Mo. rel. 66 S. W. Becker, ex rel. Himmelsbach v. (2d) 873; State 337 Mo. We have examined (2d) 85 S. W. 421.] decisions asserts are relator contravened we do not
court which find re- respect rulings put to either of the opinion, spondents’ question therewith, nor do herein, сonflict know decision of opinion is contravened of Ap- this court Court It therefore follows that our this instance. writ peals in herein should Hyde Bradley, so quashed. CC., It is ordered. concur. foregoing opinion by Ferguson, C., PEB CUBIAM: —The is adopt- judges All the opinion court. concur. ed Company, & Finance Rеal Estate Corporation, and Southern Company, a Corporation, Investment Appellants, Delmar Drug Company, a Corporation. S. W. Park 1169. One, April 1,
Division Boyle Priest, George <& T. Moloney Priest and Bobt. E. appel- .lor lants. *2 Kirby, Nagel, Shepley Orrick
Ralph respondent. Kalish *3 BRADLEY, $20,864.36 C. This is an action to recover damages as alleged for agreement the breach of an certain property. lease The рrayer petition $36,000, of the was for amount, plaintiff this con- ceded should be reduced rentals property received in the alleged period, lease necessary and other matters not to mention. A jury trial was waived. court found for defendant ap- pealed. own Building
Plaintiffs Bank Central Nаtional at the northwest Streets, Louis, corner of Seventh and Olive St. and claim that de- agreed lease, years, ground for fendant five premises floor known Street, agreement. Olive and breached the H. J. Farish- 705% Knapp Company, agents, Louis, real estate represented St. plaintiffs, employee and Alfred J. Guth was an company. Glik, this Edward Louis, a real estate represented St. defendant. Guth was man- ager building of the and had an officetherein. Prior to April Glik called on Guth to ascertain if defendant could obtain a room in building drug for a store. Guth told Glik that the storeroom might known as Olive premisеs be available. The were then 705% occupied Jewelry the Cuquet Optical Company & and had been-for years. jewelry eleven lease expired, had and this company had been a month tenant February, since month per Guth told Glik that the rental would be year, and for Glik defendant, take thе matter up and have defendant submit proposal writing, he, Guth, and that then would submit the matter Defendant, plaintiffs, 16, 1932, the owners. on April submitted following: regard being
"In to storeroom 705 Olive Street same storeroom now Jewelry the Cuquet Optical Company, & make the fol- lowing proposal: ‘‘ years To leasе $7,200.00 said storeroom for a period of ten per- medicines, drugs, retail, patent selling at purpose
annum for the candies, articles and to con- cigarettes, toilet cigars, tobacco, package operated two stores manner as the other in the same duct this store Washington Avenue being by us, located those stores in St. Louis 2720 N. 14th St.” refused, it was plaintiffs, and offer to Guth submitted they thought per- leased to defendant with that if because reduce the rent of the might have to tobaccos mission sell lobby building. cigar Guth stand in the operated tenant who sug- and that Glik up the matter with says that hе then took ‘‘ seventy eight for five he, Guth, up draw gested that suggestion, April and on Pursuant dollars.” hundred follows: wrote Glik as enclosing for are herewith leases Olive Mr. Glik: We “Dear 705% Drug Company, approval for their and execution. street, the Park that the rental as mentioned said lease is please will nоte “You annum, your we believe that client will in the amount of $7800.00 tobacco, give selling privilege in order to them the appreciate that quite increase, we are sure will compelled to ask this we are building lobby a cigar man in the present make our compelled . of this class of businеss the diversion amount due to of this concession your client. 1st, 1932, we be dated from June have been “This leases date, the rent on that it is understood that deliver unable to on date of shall commence ‘‘ very truly, Yours “ Co.,Agents. Farish-Knapp H. J.
“By: inside of leases with red ink to show proper We have marked “P. S. *4 signature and seal. place for
“A. J. G.” rejected by defendant, but Guth and offer was Glik con- The $7800 bring about results. testified efforts to Guth that Glik tinued their year he, Guth, get plaintiffs’ consent to a thought if could might Guth told Glik to defendant be obtained. results again letter,” plain- would submit the matter and that he “give aus “brought following letter, in” the testified that Glik bear- Guth tiffs. May 6,1932, Farish-Knaрp Company, to H. & addressed J. ing date of Krohn, Drug Co., I. T. Pres.:” “The Park signed, and regard being at to storeroom Olive Street “Gentlemen: 705% by Jewelry Cuquet Optical now Company, same storeroom following proposal: make the period $7,200.00 of five at lease said storeroom
“To selling drugs, purposе retail, patent medicines, of for the annum tobacco, cigarettes, package candies, toilet articles and to con- cigars, manner other operated in the same two stores duct this store by. us, being Washington St. Louis those stores located Avenue, and 2720 N. 14th St. right drugs patent
“To have the exclusive sell and medicines in Building premises. the Bank Central National days beginning day
“To be free rent allowed fifteen with the first occupancy.” of subject
Guth as when get and Glik discussed the defendant could just clear when such discussion or discussions place, but we infer that the (principally) took it was on occasion when letter,” shortly Grlilc told to have defendant “write us a and prior subject possession to defendant’s of of On Guth testified:
“Q. you exactly you state can, Will the conversation as near as Well, A. get relative to that? Mr. Glik asked me when we could possession it, thought I get possession of and I told him I could July, securing possibility possession first with the the 15th June, says, fine, Glik ‘That give Mr. will be because will drug company days get started, fifteen in which to would ’ get July, possible, like started business the first before I Cuquet I told him would Dr. get possession see and see if I could June, time, the 15th of and 1 told Mr. Glik ‘If I cannot come any agreement Cuquet by 15th Dr. of June it will require ’ give thirty days get us to him possession July, notice to the first of Cuquet negotiation but the result with Dr. that he promised June, get Q. us that he out on 15th would which he did. After you your had had with Dr. Cuquet, conversation in which he promised get you June, out 15th of did inform Mr. Glik Yes, sir; around, along effect? A. I think it was 10th was the —it May I lеtter, wrote Mr. a Glik and I Drug addressed the letter to Park inclosing Company, premises, lease for the and I mentioned in that possession would that I secure the 15th of June.” Krohn, 10th Guth I. Cincinnati, Ohio, wrote T. president, (appearing the letter presently) which, accordipg Guth, was mailed to him forwarded to Cincinnati, defendant.at enclosed, Ohio. Two lease forms were but neither plain- tiffs. The letter follows:
“Dear Sir: In connection with the lease about to be entered into your company between and the Central National Bank Building Com- your pany, it is understood rent shall days commence fifteen from yоu. that we deliver date your “We want to call attention to clause in the lease as to-the *5 possession, premises as time these are now and try going we are and secure as soon possible, put we in the protect clause lease to either party in the event may cоmplications in securing arise “We possession, believe we will secure before, not not later 15th, than June ‘‘ on page at the bottom of the executed second leases ” n (Italics ours.) ‘XX.’ marked the letters
lines with ’ May Between letter of plaintiffs not to says Defendant did and “every now called 20th, that he Glik 10th and Cincinnati,” from he had heard what and know then,” “wanted ’ ‘‘ ’ anything yet; about had not heard that he that Glik said and Krohn him that “Mr. 23rd, Glik, and told that Glik he called ’’ through going not contract. changed mind, his and were all assignments, but here, separate make Plaintiffs, six appellants for that under the the court should fоund are to the effect facts plaintiffs. five contended that a contract for
It is contrary. year consummated, and contends the per was defendant law¿ a gave made trial and refused declarations court 11, “The Among findings was No. as follows: of facts. forms, (enclosed in D plaintiffs’ exhibits C аnd in defendant’s expressed to the terms 10th) material additions contain a May 6, 1932, thereof and the submission letter of said constituted to defendant.” proposal counter May 6th not brief, says “did Defendant, that its in lease,” a a enter into written offer to constitute as, an constitute, nor it intended May 10th “did not argues that both letters “were an offer. Defendant acceptance” of looking relationship.” a contractual steps towards preliminary Co., 899, (2d) Ry. 8 W. Illinois Fuel v. Mobile Ohio Co. an for sold defendant. 834, was action recover coal One in whether contract was consummated questions involved was purchasing company’s railroad from or Missouri. The Illinois 915, (2d) 839) Louis, (319 Mo. l. 8 S. W. l. c. officein St. wrote c. attaching . . am contract cover- company: duplicate “. I fuel daily 50,000 net ing pounds, a total of tons of delivered quantities, July July 1, equal from approximately you kindly have properly net ton. Will the contract at $2.45 your company return to hand- me final executed behalf you properly a executed.” copy I return ling. will Illinois, replied: “We herewith Sparta, are The fuel you final returning duplicate properly contract executed for you note, handling, time, coрy will return us for our ’’ files. consummated until It was held that the contract contract) companies (two companies signed the railroad railroad Louis, ruling copy company. fuel returned St. (319 839) Mo. l. 8 S. W. c. : point the court said l. general that, rule “Appellant support cites cases in party uncоnditionally proposal addressed one to another is definite other, completed, is then and there and the accepted contract
403 Chouteau, v. contracting. acceptance place is the place [Allen Co., Mo. 309, l. 869; 151 14 Horton Insurance S. W. ] made proposal a contemplates l. c. S. W. This rule 356. the shall any that contract reservation, and with the intention without facts upon were the complete proposal. of the Such acceptance be are not facts appellant, the but such the considered in eases cited mining аgent in 'this the railroads sent the presented case. request- together a company unsigned, with form contract him ing signed mining company and returned to that it the be Evidently that contract handling.’ he never intended the final ‘for completed signed and mailed should be and become effective signed mining 111., him hаve company Sparta, the or he would it, request that it be duplicate the in with the contract mailed mining original signed duplicate and a be company likewise any rate, if he that ‘the last act mailed back to him. At intended mining completion of the toward the contract’ should be that -samе, mailing he contract, him the after it had him not that it returned to and would not said be ” handling.’ (Italics in opinion.) final ‘for plaintiffs, present that case, will observed in their 10th, unsigned forms letter of duplicate with lease enclosed, one were referred to lease as about to be into. entered any Thеre claim in was no that or other that the lease then Also, observed, according consummated. will to the facts, May 10th, that the forms enclosed with letter of “material expressed” contained additions to the terms in defendant’s 6th. Guth testified lease forms enclosed the letter of 10th were same as those sent to 18th, in the letter of April but Guth admitted that he and Glik not, any time, did discuss terms and conditions of the lease. All that was discussed was duration and consideration. bargain “In order necessary to make a it is that the acceptor shall
give in promise exactly return for the offeror’s the cоnsideration which requests. the offeror If requested, an act is very act and no given. promise other must be If a requested, is that promise must be absolutely made and unqualifiedly. This does not mean necessarily precise requested that the words promise be repeated, must but by a positive unqualified proposal assent to the the acceptor must agree in effect precisely make promise requested; and if provision is added which the assent, offeror did not consequence merely provision is binding is not and that no contract formed, rejected. the offer is ‘‘ The new сondition is as fatal when its inconsistency with the offer appears by only implication as when it is explicitly stated. Thus when an offer is made mail to sell stock, reply in terms accepting the offer, adding ‘ship with draft attached’ adds new condition by implication place since under the offer 'was the residence, buyer’s.” seller’s and the transfers it to the Wil- [1 Ed.), liston on (Rev. Contracts sec. 73.] Contracts, says: “Accept- Restatement of Section the Law (of offer) unequivocal an contract,” ance must be order to create a *7 says: “An and comment a offeror is entitled to know in clеar terms accepts proposal. enough the offeree his is not whether that the justify probable words of a inference of assent.” Equitable Society ex State rel. Life Assur. v. Robertson et al. 989, l. 991, (Mo.), 191 W. elementary S. law is stated thus: “It is to make a be, among that in order contract there must things, other meeting contracting parties regarding of the minds of the the' same thing, negotiations at the preliminary same time. or steps taken leading parties up making to the of a contract do not of them selves constitute contract. The contract not complete is or con proposition presented summated until the of the one is to the other by him accepted presented qualifications. without conditions or words, acceptance proposition presented by In other the one accepted tendered; must be the other in the form the ac omits, to, ceptance made, adds or alters the terms of the'proposition negotiations any party long then neither to the is bound. So element proposition open, is left the contract complete and, is not ’’ course, binding oil one. Numerous cases are cited.
We record, cannot from this say, that there was no evidence support trial.court’s that the lease forms enclosed with plaintiffs’ letter of 10th contained “material additions” to de Also, fendant’s offer of sent the lease forms May 10th, they sign them, did not and were not bound. And in addition, 10th, by using expression, “In into,” connection with the lease about to be entered stated, as above indicates that did not consider that the contract would be signed by consummated until parties.. judgment Ferguson should be affirmed and is so ordered.
Hyde, GO., concur. foregoing opinion
PER Bradley, C., CURIAM:—The adopted opinion judges of the court. All the concur. at the relation of Hortense Relator, State of Brosnahan, Missouri Hopkins al., Judges City of the Kansas Court of B. Shain et Appeals. 1193. W. One, April 1,
Division