Campbell v. American Handle Co.

• Decision Date: 27 February 1906
• Citation: Campbell v. American Handle Co., 94 S.W. 815, 117 Mo. App. 19 (Mo. App. 1906)
• Parties: CAMPBELL, Respondent, v. AMERICAN HANDLE COMPANY, Appellant
• Court: Missouri Court of Appeals

94 S.W. 815

117 Mo.App. 19

CAMPBELL, Respondent, v. AMERICAN HANDLE COMPANY, Appellant

Court of Appeals of Missouri, St. Louis

February 27, 1906

Appeal from Pemiscot Circuit Court.--Hon. Henry C. Riley, Judge.

REVERSED.

Judgment reversed.

Farris & Oliver for appellant.

(1) The court erred in refusing to sustain the demurrer to the evidence. The plaintiff had failed to make out any case against the defendant. Even upon his own testimony (and he was the only witness for plaintiff who undertook to say what the contract was), he had made no contract with defendant enforcible at law. He refused to swear that he even obligated himself to use diligence in carrying out, on his part, the alleged contract. This contract was, as to that portion unfulfilled on October 23, 1903, void for lack of certainty and for lack of mutuality. For it is submitted that: (a) Unless both parties are bound by a contract, so that an action can be maintained by either against the other for a breach, neither will be bound. Bishop on Contracts, (Enl Ed.), sec. 78; 7 Am. and Eng. Enc. of Law (2d Ed.), 138; Campbell v. Lambert, 36 La. Ann. 35; Railroad v Mitchell, 38 Tex. 85; Ashcroft v. Butterworth, 136 Mass. 511; Drake v. Vorse, 52 Iowa 417; Thayer v. Burchard, 99 Mass. 508; Hoffman v Maffioli, 104 Wis. 630; Railway v. Dane, 43 N.Y. 240; Newlin v. Prevo, 90 Ill.App. 515; American Cotton Oil Co. v. Kirk, 15 C. C. A. 540; Cold Blast T. Co. v. Kansas City B. & N. Co., 114 F. 77. (b) If, in this case there was no mutuality of promise for the delivery of any definite, or ascertainable quantity of bolts or logs, then there was no contract, and a failure to continue performance, or to accept continuance of delivery, would give no right of action to the plaintiff. Crane v. Crane & Co., 105 F. 869; Bailey v. Austrian, 19 Minn. 535; Moulton v. Kershaw, 59 Wis. 319; Swaine v. Maryott, 28 N.J.Eq. 589. (2) It must be conceded by the respondent that unless he were bound, then the defendant could not be. If plaintiff was bound, to what and for what was he bound? A promise is not a good consideration for a promise unless there is a mutuality of engagement, so that each party has the right at once to hold the other to a positive agreement. Stiles v. McClellan, 6 Colo. 89; Townsend v. Fisher, 2 Hilt. 47; Livingstone v. Rogers, 1 Cal. 583; Tucker v. Woods, 12 Johns. 190; Keep v. Goodrich, 12 Johns. 397; Macedon & B. P. Road Co. v. Snedeker, 18 Barb. 317; Jones v. Durgin, 16 Mo.App. 373; Am. Pub. & Eng. Co. v. Walker, 87 Mo.App. 508.

Ward & Collins for respondent.

The appellant on this point makes the contention (a) that the contract sued upon and proved was one in which both parties were not bound; this is not true. In this case there was an obligation on the part of the respondent to cut and haul timber for a stated length of time off of certain lands, and the appellant was under obligation to furnish said timber for respondent to cut and haul and to pay him a stated price for such services, and both parties being bound, either could maintain an action against the other for a breach of said contract. Jones v. Durgin, 16 Mo.App. 373; Louis v. Ins. Co., 61 Mo. 534.

BLAND, P. J. Goode and Nortoni, JJ., concur.

OPINION

BLAND, P. J.

The petition contains two counts. The second count was abandoned at the trial. The first count alleges that the plaintiff and defendant (a corporation) on August 28, 1903, contracted with each other as follows: Plaintiff was to cut and deliver at defendant's factory in the city of Caruthersville, Missouri, ash timber of the lengths of six feet and two inches and four feet and nine inches, and none less than seven inches in diameter at the small end, at the price and sum of $ 4.50 per cord, and all ash suitable size for saw-stocks to be cut in lengths of twelve feet and four inches, fourteen feet, and sixteen feet, at the price and sum of $ 10 per thousand feet, and that by the terms of said contract, said prices were to be paid plaintiff by the defendant for all the timber that plaintiff could cut and haul off of what is known as the Cunningham land west and south of what is known as King millsite, in Pemiscot county, Missouri, from the time of making said contract until the first day of January, 1904. That the plaintiff, in order to prepare himself to perform his part of the contract, built roads and put up a boarding-house, which he furnished, all at a great expense, and laid out other sums of money for tools necessary to enable him to carry out the contract, and that he, under the contract, cut and delivered on defendant's millyard, a large quantity of both kinds of timber named in the contract and that he continued to cut and deliver the timber until October 23, 1903, when the defendant forbade and refused to let him continue to cut and deliver any more of the timber.

The answer is a general denial, a plea of payment of all sums due under the contract and the surrender of the contract by the plaintiff for a consideration.

At the close of the evidence, the defendant moved the court to declare that under the law and the evidence, the plaintiff could not recover. The court refused this request and submitted the case to a jury, who returned a verdict in favor of the plaintiff. Defendant appeals.

Defendant contends that its instruction for a nonsuit should have been given, for the reason that the evidence of both parties conclusively shows that neither party was bound by the contract; that defendant was only bound to pay for the timber actually delivered and accepted and that as it was admitted this was done, plaintiff had no cause of action to submit to the jury. Plaintiff testified as follows:

"I made a contract with them (the defendant) to deliver this timber. I made this contract with George Peattie, a member of defendant corporation. This contract was closed in front of the Wilson Hotel in Caruthersville. Agreed upon the price. I was to cut the timber down on the Cunningham land near the King millsite. I was to cut and get out ash for handle stuff, six feet two, and four feet nine, none less than seven inches at the small end. For this I was to get $ 4.50 per cubic cord. Later we found it heavy to handle this stuff, and I agreed with Peattie that the part that was heavy to handle and load should be cut into saw-stocks and hauled on log wagons. For that--the saw-stock--I was to have $ 10 per thousand, measured outside the bark. He agreed to pay that and I agreed to take it, and to deliver the timber at defendant's factory."

That nothing was said about how much timber land he was to cut over; that he understood he was to deliver the bolts and defendant was to accept all the bolts he could deliver; that Peattie said to him he would give him the contract to put in as...