118 Mo. App. 197 | Mo. Ct. App. | 1906
Lead Opinion
(after stating the facts:). — The material. facts alleged are: first, that on December 5, 1900, plaintiff became lessee of the premises described in the petition under a written lease executed by defendant for a term of five years; second, that under the terms of said lease, plaintiff was prohibited from subletting the premises or assigning the lease without first obtaining the
The demurrer admits these facts to be true and the question presented thereby calling for the opinion of the court is: does the petition show mutuality in that sense that an action can be maintained by a party who has performed its part against the party who refuses to perform? We are quite clear that it does. Now, it. is true that there is no mutuality shown between these parties in the first instance. The agreement, when entered into, was clearly nudum pactum. The defendant being under no manner of obligation to do so, made a written promise to make the indorsement on the lease permitting the assignment thereof upon plaintiff’s furnishing a satisfactory tenant. Now for this agreement the defendant received no compensation nor reward of any kind or nature, nor did plaintiff inconvenience itself or forfeit any right or make any expenditure of time or money at the time of the promise, and while the matter was in this posture, it is true, plaintiff could not have maintained any suit thereon for its breach until he had first performed. In fact, there could have been no breach until plaintiff had first performed, for hisperformance was essentially a precedent condition and there was therefore no obligation
It is true that in such agreements, which at first are insufficient by reason of the want of the very essential element of every valid contract, sufficient consideration and mutuality, the promisor can, if he sees fit, revoke and recall the promise at any time prior to the promisee having moved toward its fulfillment and expended time, labor or money and inconvenience himself thereabout, for up to that time nothing having been done thereunder, by the promisee, it will remain a nude pact and is not obligatory. [Andreas v. Holcombe, 22 Minn. 338.] But if the promise is permitted to stand and with the knowledge of the promisor, the promisee expends time, labor or money, or otherwise inconveniences himself or forfeits any legal rights, relying upon the faith of the promise, the element of consideration and mutual
2. Since writing the foregoing opinion, the learned presiding judge has prepared a dissent and requested that the casé be certified to the Supreme Court, as in his opinion the decision is in conflict with the decision of the Supreme Court in Blaine v. Knapp, 140 Mo. 241. In the opinion of the majority of this court, that case is entirely dissimilar from the one now under consideration. There the contract was to the effect that Blaine was to receive additional compensation provided the employer “changed its mind/’ and became of the opinion that his services Avere such as to demand additional compensation. The court said (1. c. 249) that: “this increase depended entirely upon the opinion of the management and there is no allegation in the petition that the management were of the opinion that he was entitled to it.” Certainly there can be no similarity between that and
Entertaining these views, we are of the opinion that the petition was sufficient and that the demurrer should have been overruled. The judgment is therefore reversed and the cause remanded.
Dissenting Opinion
(dissenting). — Omitting caption, the petition is as follows:
“Now comes the plaintiff in the above-entitled cause and by leave of court first had and obtained, files this, its second amended petition herein, and for cause of action •states that it is a corporation duly organized and existing under and by virtue of the laAvs of the State of New Jersey.
“That the defendant is a corporation organized and*206 existing under and by virtue of the laws of the State of Missouri.
“That the plaintiff was formerly known as the Wagner Typewriter Company, but it has duly changed its name to Underwood Typewriter Company.
“That defendant Century Bealty Company is the successor of the Century Building Company.
“That on the fifth day of December, 1900, plaintiff entered into an agreement in writing with said Century Building Company, whereby plaintiff leased the space known as No. 309 North Ninth street in the city of St. Louis, State of Missouri, and certain space appurtenant thereto for a period of five years beginning on the first day of February, 1901, and ending on the thirty-first day day of January, 1906. That plaintiff threupon entered into possession of said premises.
“That said agreement provided among other things, that neither said premises nor any part thereof should be assigned or underlet without the written consent of defendant indorsed thereon. That plaintiff secured from defendant its written agreement to give its written consent to an assignment of said lease to an acceptable tenant. That relying upon said written agreement, plaintiff, with the knowledge of defendant, expended a large amount of time and labor in securing an acceptable and satisfactory tenant for the space embraced in said lease, and did secure such tenant for said space.
“That notwithstanding the fact that plaintiff had procured an acceptable tenant for said space, defendant refused and still refuses to consent to the assignment of said lease and to permit said tenant to enter into the possession of said premises though often requested so to do.
“That by reason of defendant’s refusal to consent to said assignment of said lease as aforesaid, plaintiff was and is prevented by defendant from securing such tenaDt at a large advance over the rent reserved by de*207 fendant- under said lease to its damage in the sum of four thousand five hundred dollars.
“Wherefore plaintiff prays judgment for four thousand five hundred dollars.”
To which petition, defendant filed a general demurrer, which demurrer was in due course of time sustained by the court. Plaintiff declining to plead further, judgment was given for defendant. From which action of the circuit court, plaintiff has appealed to this court.
The salient facts related in the petition are: first, that on the fifth day of December, 1900, plaintiff became the lessee of the premises described in the petition under a written lease executed by defendant for a term of five years; second, that under the terms of the lease, the plaintiff was prohibited from subletting the premises without the written consent of the defendant indorsed on the back of the written lease; third, that defendant gave its written consent to plaintiff to make this indorsement whenever plaintiff would procure an acceptable subtenant; fourth, that relying upon this promise, the plaintiff, at trouble and expense, procured an acceptable subtenant to whom it could have sublet at a profit to itself but defendant failed and refused to give its consent to a subletting of the premises to plantiff’s damage, etc.
The demurrer was a general one and, hence, does not raise the question as to whether or not the petition is badly or inartistically drawn and should have been overruled unless the petition is wholly wanting in averments necessary to constitute a cause of action. [State ex rel. v. Carroll, 63 Mo. 156; Ferguson v. Davidson, 65 Mo. App. 193.] The doctrine is well settled that any injury or inconvenience to the promisee is a sufficient consideration to uphold a promise, though no benefit or advantage arises to the promisor (Carr v. Card, 34 Mo. 513) such as the incurring of expense and the assuming of liabilities by the promisee (Koch v. Lay, Garn, 38 Mo. 147; Lamp Co. v. Mfg. Co., 64 Mo. App.
In Davie v. Lumberman’s Mining Co., 93 Mich. 491, it is said, that an agreement by which miners are to work at mining in a specific pit for one dollar and fifty cents per ton, “as long as we can make it pay,” was not of such a character as to entitle them to damages for its breach.
In Vogel v. Pekoc, 157 Ill. 339, it is said, that a contract to employ a person to work from time to time, his services to continue only as long as satisfactory to the employer, did not bind the employer to do anything. And it seems to me the contract between plaintiff and defendant does not bind the defendant to do anything. There is, therefore, a want of such certainty in the contract as to make it non-enforcible; for this reason I think the judgment of the circuit court sustaining the demurrer should be sustained, and I also think the majority opinion is opposed to the decision of the Supreme Court in the case of Blaine v. Knapp & Co., supra, and ask that the case be certified to the Supreme Court for its decision.