Reigart v. Manufacturers' Coal & Coke Co.

• Decision Date: 25 November 1908
• Court: Missouri Supreme Court
• Parties: REIGART v. MANUFACTURERS' COAL & COKE CO.

117 S.W. 61

217 Mo. 142

REIGART v. MANUFACTURERS' COAL & COKE CO.

Supreme Court of Missouri.

November 25, 1908.

Rehearing Denied March 9, 1909.

1. FRAUDS, STATUTE OF (§ 44)—ORAL CONTRACT —TIME FOR PERFORMANCE.

A contract merely giving plaintiff, without any expressed consideration therefor, the option of buying from defendant a specified amount of coal on certain terms during a period of three years, cannot be made valid and enforceable by showing a contemporaneous oral agreement requiring plaintiff to go out and create a market for defendant's coal, as such oral agreement is void under the statute of frauds (Rev. St. 1899, § 3418 [Ann. St. 1906, p. 1951]), requiring all agreements not to be performed within one year to be in writing.

2. FRAUDS, STATUTE OF (§ 84) — SALE OF GOODS—NECESSITY FOR WRITING.

A contract giving plaintiff the option of buying from defendant a large amount of coal on terms specified without requiring plaintiff to buy any amount of coal cannot be made enforceable by a contemporaneous oral agreement by which plaintiff was to work up a market for defendant's coal, as such oral contract is void under the statute of frauds (Rev. St. 1899, § 3419 [Ann. St. 1906, p. 1963]), requiring all contracts for the sale of goods for the price of $30 and upwards to be in writing.

3. EVIDENCE (§ 397)—VARYING WRITING BY PAROL.

Where a written contract is complete on its face, parol evidence is not admissible to alter or add to its provisions.

4. EVIDENCE (§ 411)—PAROL EVIDENCE—INCOMPLETE WRITING.

Where a writing not within the statute of frauds shows on its face that all the terms agreed on are not embraced therein, parol evidence is admissible to show the omitted part.

Lamm and Graves, JJ., dissenting.

In Banc. Appeal from Circuit Court, Adair County; Nat. M. Shelton, Judge.

Action by H. P. Reigart against the Manufacturers' Coal & Coke Company for breach of contract. From a judgment for defendant, plaintiff appeals. Affirmed.

This suit originated in the circuit court of Adair county, and was instituted by plaintiff against the defendant to recover approximately $1,000,000 for the breach of the contract hereinafter set forth. The trial resulted in a verdict and judgment in favor of the defendant, and, after taking the proper preliminary steps, he appealed the cause to this court.

The cause was assigned to Division No. 1, and was there argued and submitted for adjudication, which resulted in a divided court, and, in pursuance to the mandate of the Constitution, the cause was transferred to court in banc. The contract sued upon is in words and figures as follows: "This agreement made this twentieth day of November, A. D. 1902, between the Manufacturers' Coal & Coke Company, party of the first part, and H. P. Reigart, of St. Joseph, Missouri, party of the second part, witnesseth: The party of the first part shall furnish and the party of the second part shall receive such coal as the party of the second part shall make requisition for, but not exceeding twenty-five hundred tons per working day. The coal shall be furnished from the mines of the party of the first part in Missouri and Iowa, and shall be free from stone, slate, dirt, bone, sulphur, and black jack, and shall be screened over bar or perforated shaker screens to remove slack and nut coal. The coal shall be subject to the inspection and acceptance of the party of the second part at the mines and subject to the weight of the Western Railway Weighing Association at the mines, the actual tare weight of cars to be ascertained by weighing the cars empty before they are loaded. The party of the second part shall pay and the party of the first part shall receive as full compensation for said coal furnished hereunder one dollar and seventy-five cents ($1.75) per net ton f. o. b. cars St. Joseph, Missouri; and the same price shall apply on coal delivered f. o. b. cars to connecting lines at any junction point on the Iowa and St. Louis Railway between Mystic, Iowa, and Macon, Missouri, both inclusive, less the prevailing rate per ton on coal from said junction point to St. Joseph, Missouri. Payments for coal shall be made by the party of the second part on or about the twentieth of each month for coal furnished during the previous month. The party of the first part shall make shipments of coal in such quantity and manner as the party of the second part shall from time to time direct, but the party of the first part shall not be held liable for damages on account of failure to make shipments when such failure shall be due to strikes, fires, floods, mine accidents or other causes wholly beyond the control of the party of the first part. This agreement shall take effect January first, nineteen hundred and three (1903) and shall continue in effect until December thirty-first, nineteen hundred and seven (1907), and shall bind and inure to the benefits of the successors and assigns of the party of the first part, and the heirs, administrators and assigns of the party of the second part as fully as if the said successors, assigns, heirs and administrators had been specifically mentioned in each instance. In witness whereof, the parties hereto have executed this agreement, in duplicates on the day and year first above written. Manufacturers' Coal & Coke Company, by H. F. Redding, President. H. P. Reigart. Witnesses: W. H. Marshall. C. H. Varnon." The petition, in addition to the ordinary allegations of the breach of the contract, stated, in substance, that prior to and independent of the contract mentioned in the petition there was an oral contract by and between plaintiff and defendant to the effect that the former would go out and endeavor to sell this coal and make a market therefor, and that said contract and understanding on his part with the coal company was a moving motive or inducing cause or consideration which induced the coal company to enter into the contract sued upon, and he went out to make a market for the company's coal, and that, in pursuance to same, he did so, and sent to it the orders mentioned in the petition as the result of his efforts. The answer was a general denial, and, among other things, there was a plea of the statutes of frauds, and that the contract sued on was unilateral and not binding on defendant.

It will be unnecessary to set out the pleadings and evidence in full, as the questions presented for determination are questions of law which will sufficiently appear in the opinion for a proper understanding the legal propositions involved.

Higbee & Mills and Harian & Harlan, for appellant. O. M. Spencer and Campbell & Ellison, for respondent.

WOODSON, J. (after stating the facts as above).

It is conceded by counsel for appellant that the contract at its inception was unilateral, a mere option, given to Reigart, and that no consideration for the option is expressed therein. In order to escape the effects of that concession, they contend that the consideration passing from appellant to respondent and supporting the option may rest in parol and may be shown aliunde of the option or the written contract. In pursuance to that contention, counsel for appellant offered to prove by parol evidence that, independent of the option sued on, there was an oral contract entered into between them to the effect that he would go out and endeavor to make a market for, and sell, the coal of respondent, and that the option given by the latter to appellant and the undertaking on his part to create a market and sell the coal was a motive or inducing cause or consideration which induced the coal company to enter into the so-called contract sued on, and that, when he went out and sold the coal in pursuance to the option and his undertaking to create a market for the coal, this changed the contract from a unilateral or an optional contract, without a consideration to support it, into a bilateral contract based upon a valuable consideration, and, when broken, the company was liable for the damages which flowed from that breach. While, upon the other hand, the respondent contends that the option sued on is unilateral and is therefore nudum pactum, because appellant does not thereby bind himself to purchase any of the coal mentioned in the option, nor is there any consideration to support the option expressed therein. The respondent also contends that parol evidence is not admissible to show such a consideration, for the reason that, if such consideration existed in fact, it was one of the terms of the contract, and should have been included in the terms of the written memorandum thereof, otherwise it is void under the statutes of frauds. These various contentions of the appellant and respondent present the main legal proposition we are called upon to decide.

Sections 3418, 3419, Rev. St. 1899 (Ann. St. 1906, pp. 1951-1963), are two of the sections of the statutes commonly called the "Statute of Frauds," and they read as follows:

"Sec. 3418. No action shall be brought to charge any person * * * upon any agreement that is not to be performed within one year from the making thereof, unless the agreement upon which the action shall be brought or some memorandum or note thereof, shall be in writing and signed by the party to be charged therewith, or some person by him thereto lawfully authorized," etc.

"Sec. 3419. No contract for the sale of goods, wares and merchandise for the price of thirty dollars or upwards shall be allowed to be good, unless the buyer shall accept part of the goods so sold and actually receive the same, or give something in earnest to bind the bargain, or in part payment, or unless some note or memorandum in writing be made of the bargain and signed by the parties to be charged with such contract, or their agents lawfully authorized."

In order to fully understand these statutes, we should bear in mind that at common law contracts of this character were not required to be in writing, and that, if the contract was...