187 Mo. App. 113 | Mo. Ct. App. | 1915
Plaintiff. owed defendant a note of $15000 secured by deed of trust on the former’s farm. The note had some two and one-half years to run before it would fall due or payment could be enforced. Desiring to call in said loan and obtain the money represented by the note, defendant requested plaintiff .to pay it off, and agreed that if plaintiff would do so, he, defendant, would receive the money, surrender the note, and release the deed of trust whenever plaintiff had obtained a new loan of the amount required, defendant well knowing that if plaintiff did pay off the note at that time he would be compelled to incur expense in order to obtain the money. Plaintiff agreed to pay off the note, and together they went to a bank in an endeavor to secure the new loan for plaintiff. Plaintiff was not able to secure the loan there but did obtain it through a loan company, and in doing so incurred certain necessary expenses in connection therewith. But when he offered to pay defendant’s note the latter refused to take the money, or to surrender the note and release the deed, of trust although the full amount thereof with interest and cost was duly tendered him. Thereupon plaintiff brought this suit to recover the money he had necessarily expended in obtaining the loan and the interest he had to pay thereon while it was held by him to pay defendant’s note.
The petition in due and ample form alleged the above facts. Defendant demurred to the petition as not stating a cause of action. This being overruled, he answered with a general denial and the cause went to trial before a jury. It found in favor of plaintiff, and defendant has appealed.
The main contention is that under the law and the facts plaintiff has no case.
There is an assignment that the court erred in admitting illegal and incompetent testimony but as the
Defendant insists that the contract sued on will not support a recovery because, he says, there was no consideration.- This view, is incorrect. We think there was. Note the situation of the parties. The plaintiff owed a note not yet due for two years and more. He was under no obligation to pay it or any part thereof at that time. The defendant wanted to obtain the money thereon and asked that the note be paid and promised that he would receive the money, surrender the note and release the deed of trust if plaintiff would pay it. Defendant made this promise well knowing that plaintiff would be put to expense in getting the money. We do not say this knowledge on defendant’s part is necessary to plaintiff’s recovery, bat merely mention the fact that defendant did know the plaintiff’s compliance with his request 'would involve expense to plaintiff.
Plaintiff accepted defendant’s promise and agreed to get the money and did so, thereby incurring certain expense which he would not have incurred but for defendant’s promise and the agreement made between them. After plaintiff had performed his part of the agreement in reliance upon defendant’s promise and agreement, defendant, in violation of his promise and agreement, refused to take the money or surrender the note. Certainly there was a consideration for such contract and there was mutuality. Defendant promised that if plaintiff would do a certain thing he would do another. Plaintiff agreed to that and performed his part, and the part he did was not something he was already under obligation to do. Even if mutuality had been lacking at the inception of the contract, this performance made it binding, 'for “a promise lacking, mutuality at its inception becomes binding on the promisor after performance by the promisee.” [Law
The fact that defendant derived no benefit from his promise makes no difference. It seems the real motive actuating defendant to ask for the payment of his note before it was due, was his fear that the Board of Equalization would take some action on his assessment. But when plaintiff tendered the money and offered to pay the note, that danger had passed or had been encountered, as the Board had either acted or had adjourned without action. Defendant, therefore, was no longer desirous of calling in his money. But this does not affect the question of consideration. It was not necessary that a benefit should accrue to defendant in making his promise. He made it, and the prejudice and inconvenience flowing to plaintiff in
The damages recovered were the expenses necessarily incurred by plaintiff in complying with his contract. No such expense would have been made but for the contract. By reason of defendant’s breach, plaintiff has lost the money represented by the above expense and has received no corresponding benefit, since he is in the same situation as he was before concerning the debt he owes defendant. A- party suing for the breach of a contract may recover all necessary expense incurred in performing his part thereof. [13 Cyc. 63; Hammond v. Beeson, 112 Mo. 190; Smith v. Sherman, 4 Cush (Mass.) 408; Athletic Baseball Assn. v. St. Louis Sportsmen Park Assn., 67 Mo. App. 653.] None of these expenses were voluntarily assumed by plaintiff but grew out of the contract and were necessary in order for him to comply therewith. There is no error in the case. The judgment is affirmed.