Cal Hirsch & Sons Iron & Rail Co. v. Paragould & M. R. Co.

• Decision Date: 19 April 1910
• Court: Missouri Court of Appeals
• Parties: CAL HIRSCH & SONS IRON & RAIL CO. v. PARAGOULD & M. R. CO.

127 S.W. 623

148 Mo. App. 173

CAL HIRSCH & SONS IRON & RAIL CO. v. PARAGOULD & M. R. CO.

St. Louis Court of Appeals. Missouri.

April 19, 1910.

Rehearing Denied May 3, 1910.

1. CONTRACTS (§ 10) — MUTUALITY — "UNILATERAL CONTRACTS."

To make a contract "unilateral," and thereby void, there must be no mutuality of obligation, and only one party thereto must be bound thereby.

2. CONTRACTS (§ 10) — MUTUALITY — "MUTUAL CONTRACT."

For a contract to be "mutual," an obligation must rest on each party to do or permit to be done, something in consideration of the act or promise of the other; that is, neither party can be bound, unless both are bound.

3. CONTRACTS (§ 10) — MUTUALITY — "MUTUAL CONTRACT."

A contract between an iron company and a railroad company, evidenced by a writing reciting that the iron company obligated itself to furnish such rails of a certain kind and splice bars as it might have, without any showing of any contract or act of the railroad company recognizing the existence of the contract between the parties, is void for lack of mutuality.

Appeal from St. Louis Circuit Court; Jas. E. Withrow, Judge.

Action by Cal Hirsch & Sons Iron & Rail Company against the Paragould & Memphis Railroad Company. Judgment for defendant, and plaintiff appeals. Affirmed.

A. L. Hirsch and Louis L. Boehmen, for appellant. Block & Sullivan, for respondent.

REYNOLDS, P. J.

Plaintiff brought suit against the defendant on a written contract for the sale of 308 tons (2,240 pounds per ton) of relaying T-rails, together with splice bars, at the price of $29 per ton gross, to be delivered f. o. b. cars at St. Louis, Mo., or East St. Louis, Ill. It is averred in the petition that the defendant had broken the contract to the damage of plaintiff in the sum of $1,500, for which he prays judgment, together with costs; and it is further averred that plaintiff is now ready and willing to deliver said 308 gross tons of rails as bargained and sold the defendant, at the agreed price of $29 per gross ton, upon payment of its sight draft with bills of lading attached as agreed. "Wherefore plaintiff prays judgment for the agreed price of said rails, as aforesaid, namely, the sum of $8,932, and for its costs." Defendant answered, first, by a plea to the jurisdiction, denying that either of the alleged causes of action declared on in the plaintiff's petition accrued in the city of St. Louis; and, further answering to the merits of the petition, defendant denied each and every allegation thereof. The cause coming on for trial, plaintiff offered the contract sued on in evidence. Defendant's counsel admits that it was signed by the president of the defendant company, and then objected to the contract because it was lacking in mutuality in two aspects: It states that plaintiff is to sell such rails only as it may have, and does not obligate it to have any, and it provides that the defendant may only buy such rails of the plaintiff as the defendant may want. At the commencement of the trial, and before the jury was sworn, defendant moved that plaintiff be required to elect whether it would stand on the count for damages or on the count for the purchase price of the rails and splice bars. The motion was sustained, and plaintiff elected to stand on the count for the damages — that is, the count praying judgment for $1,500 and costs — and dismissed as to the count for the recovery of the purchase price of the rails and splice bars; no exception being taken or saved by plaintiff to the action of the court in requiring it to elect.

The contract relied on and offered in evidence is as follows:

"St. Louis, Mo., 6/17/07. Paragould & Memphis Railroad Co., Decatur, Ind. — Dear Sirs: Ex. A. J. F. A. Jan. 14, '09. This will confirm sale made to your company as per conversation with your Mr. J. W. Vail of 308 tons of about 56 lb. relaying rail at twenty-nine ($29.00) per gross ton f. o. b. cars St. Louis or East St. Louis our option. The above are subject to your inspection at point of shipment. Of course, it being understood that we are only obligated to ship such re-laying rail as we may have and in case our rail do not pass your inspection we are not obligated...