Cox v. Green Fire Brick Co.

• Decision Date: 08 November 1934
• Docket Number: No. 22680.,22680.
• Citation: 75 S.W.2d 621
• Parties: ALICE COX, APPELLANT, v. A.P. GREEN FIRE BRICK COMPANY, A CORPORATION, RESPONDENT.
• Court: Missouri Court of Appeals

75 S.W.2d 621

ALICE COX, APPELLANT, v. A.P. GREEN FIRE BRICK COMPANY, A CORPORATION, RESPONDENT.

No. 22680.

St. Louis Court of Appeals. Missouri.

Opinion filed November 8, 1934.

Appeal from the Circuit Court of Audrain County. — Hon. W.C. Hughes, Judge.

REVERSED AND REMANDED (with directions)

William T. Myers, Rodgers & Buffington and George P. Adams for appellant.

(1) Respondent, in consideration of appellant assigning and delivering to it a certain insurance policy, promised to pay to the appellant certain weekly sums. Performance of the act requested and that alone satisfies the consideration requirement. 13 C.J. 275, sec. 73 (3); Williams v. Jensen, 75 Mo. l.c. 685; Gardner v. Crenshaw, 122 Mo. l.c. 84; Sawyer v. Walker, 204 Mo. l.c. 158; Underwood Typewriter Co. v. Century Realty Co., 220 Mo. 522, l.c. 527; American Publishing Co. v. Walker, 87 Mo. App. l.c. 510; Morris v. Donovan, 159 Mo. App. l.c. 403; Wallace v. Workman, 187 Mo. App. 113, l.c. 116 and 117; Bay v. Buck, 190 Mo. App. l.c. 399; Roberts v. Harmount Tie & Lumber Co., 264 S.W. l.c. 449; Nicholson v. Acme Cement Co., 145 Mo. App. 523, l.c. 531; 13 C.J. 316, sec. 150 (and cases cited). (2) Performance by the promissee of the act requested by the promissor, so long as it is of the slightest trouble or inconvenience to the promissee, provides an adequate and valid consideration for the promissor's promise. Williams v. Jensen, supra, l.c. 685; Underwood Typr. Co. v. Century Realty Co., supra, l.c. 530; Houck v. Frisbee, 66 Mo. App. l.c. 21. (3) Upon performance of the act requested there is a valid consideration and what may or may not have been the promissor's motive is immaterial. It is of no concern that the promissor did or did not receive a benefit from the performance of such act. 1 Elliott on Contracts, sec. 207, p. 338; 13 C.J. 365, sec. 237; Marks v. Bank of Mo., 8 Mo. l.c. 231; Williams v. Jensen, 75 Mo. l.c. 685; Underwood Typr. Co. v. Century Realty Co., supra, l.c. 530; Columbia Lamp Co. v. American Electrical Mfg. Co., 64 Mo. App. l.c. 118; Forbs v. St. Louis-San Francisco Ry., 107 Mo. App. l.c. 674; Nicholson v. Acme Cement Co., supra, l.c. 533; Wallace v. Workman, supra, l.c. 117; Little Rock Surgical Co. v. Bowers, 42 S.W. (2d) 367, l.c. 369. (4) Mere inadequacy of consideration is not a want or failure of consideration. 13 C.J. 365, sec. 237; Lindsey v. Sonora Mining Co., 196 S.W. 764; Glover v. Shirley, 169 Mo. App. l.c. 640; Columbia Incandescent Lamp Co. v. American Elec. Co., supra. (5) Respondent promised that if appellant would promise to make the assignment, which was made, it would pay to appellant weekly sums for a certain period. Appellant and respondent thereby created a bi-lateral contract. A promise for a promise is a good consideration and when mutual promises are made there arises a valid and binding contract, enforceable at the instance of the promissee. Lindel v. Rokes, 60 Mo. l.c. 251; Chenoweth v. Pac. Express Co., 93 Mo. App. l.c. 192 and 193; Steele v. Johnson, 96 Mo. App. l.c. 159; Wallace v. Workman, supra, l.c. 117; McKee v. Cochran, 272 S.W. l.c. 1092; Little Rock Surgical Co. v. Bowers, supra, l.c. 369.

Fry, Hollingsworth & Francis for respondent.

(1) The sole consideration for respondent's promise to continue the weekly benefits was the assignment of the certificate. Allen West Com. Co. v. Richter, 228 S.W. l.c. 831-832. (2) Appellant had no legal or vested right in the certificate of insurance issued to Mr. Cox. Until his death occurred while the same was in force the certificate belonged exclusively to respondent. Myerson v. Hosiery Co., 55 A.L.R., page 1231; Thompson v. Pacific Mills, 55 A.L.R., page 1237, and Annotations following said case at pages 1245-1258. Kowalski v. Aetna Life Insurance Co., 63 A.L.R. 1030, and Annotations beginning at page 1034; Gallagher v. Simmons Hdw. Co. (Mo.), 258 S.W. 16; Douglas v. Insurance Co. (Mo.), 297 S.W. 87; Wheeler v. Monsanto Chemical Co. (Mo.), 263 S.W. 881. (3) Respondent obtained no benefit by the assignment and appellant suffered no loss or detriment thereby. There was no consideration, therefore, for respondent's promise to continue the payment of the weekly benefits. 13 C.J., pages 311-312; German v. Gilbert, 83 Mo. App. l.c. 416; Wear Bros. v. Schmelzer, 92 Mo. App. 314; Restatement of the Law of Contracts (A.L.I.), sec. 75, page 80; Missouri Annotations thereto sec. 75, page 30.

HOSTETTER, P.J.

This suit was begun on the 27th day of October, 1932, in the Circuit Court of Audrain County by Alice Cox, the appellant, filing her petition, which, in substance, is as follows:

That the defendant, was, and is, a Missouri corporation, with its principal business office located at Mexico, Audrain County, Missouri; that on July 18, 1931, and for sometime prior thereto, the defendant company, acting under certain of its rules and regulations, had been paying and was to continue paying plaintiff $6 per week, called sick benefits, and that defendant, being desirous of indemnifying itself as against such payments, theretofore and thereafter to be made, offered and agreed with plaintiff that if she would assign the life insurance policy of her husband in the Missouri State Life Insurance Company, together with all her right and interest as beneficiary therein, to the defendant, then the defendant would pay plaintiff the sum of $1000, in weekly installments of $6 until the entire $1000 was fully paid, and also agreed that in the event of the death of her husband, Henry Cox, prior to the payment to her of said sum of $1000, the defendant would pay the difference between the amount previously paid and the $1000; that she accepted said offer and duly assigned the said policy and all of her rights thereunder and delivered same to defendant; that thereafter defendant paid, under the terms of the agreement, $306, up to and including July 27, 1932, but had failed and refused to make any additional payments thereafter and had disclaimed any further liability, and plaintiff prays judgment for $660.50.

The answer admitted the incorporation of the defendant company and denied each and every other allegation in the petition and thereupon set up the following matters as defense:

That on or about January 20, 1920, the defendant voluntarily entered into a contract with the Missouri State Life Insurance Company whereby it took out group life insurance contracts insuring the lives of certain of its employees, the beneficiaries to be designated by such employees, whereby the amounts to be paid such beneficiaries would be the sum of $300 if the insured died during the first year of the contract and increasing at the rate of $100 per year during their respective employment by the defendant until the insurance on each employee so continuing in the employ of the defendant would reach the maximum of $1000, such insurance contract to be in force on the life of each of its employees after such employee had been in the employ of the company for a period of six months; that thereafter, up to July, 1932, the defendant continued its contract with said insurance company by voluntarily paying the annual premium provided for in same, and that the insurance company continuously up to July, 1932, issued its certificate of insurance to each individual employee who had been in the employ of the defendant for a period of six months, and such certificate being held and retained by each individual employee who remained continuously in the employ of the defendant, and during each year that said certificate of insurance so issued to each employee was in effect said insurance company, on the payment of the annual premium under said group policy by the defendant, duly issued to each employee of the defendant holding one of its certificates of insurance its receipt showing the annual premium on said certificate to be fully paid by defendant; that such procurement of said insurance on the lives of its employees was a voluntary act on defendant's part wholly without consideration between defendant and its employees and solely for their individual benefit; that on or about the 10th day of September, 1922, Henry Cox, husband of plaintiff, having then been in the employ of the defendant for more than six months, received from said insurance company, in accord with the contract theretofore made between defendant and said insurance company, one of the certificates of life insurance on his life, being No. 501, under group policy G-1018, wherein said insurance company promised to pay to Alice Cox, the plaintiff, upon the death of Henry Cox while said policy was in full force and effect, the sum of $300, on which certificate of insurance the defendant has thereafter continuously paid the annual premium and during which time the principal amount of said policy has increased from $300 to $1000; that such payment by defendant of said premiums was a gratuity on its part and solely for the benefit of Henry Cox and his wife, plaintiff herein, without any consideration whatsoever moving or coming from either of them to defendant; that on or about the ____ day of January, 1931, Henry Cox from natural causes became disabled and continued ever since such time so disabled that he was unable to perform any of the duties incident to his employment by defendant; that in accord with the custom then practiced by defendant, it, voluntarily and as a mere gratuity, paid to Henry Cox and his wife, the plaintiff, the weekly benefit of $6 until on or about the ____ day of July, 1931, at which time it advised Henry Cox and plaintiff that it had paid to them an amount in excess of the amount payable to them under the terms and provisions of its plan for the payment of disability benefit; that upon receipt of said information the said Henry Cox and plaintiff, represented themselves to be in destitute circumstances, and importuned defendant to continue said payments; that defendant, as a result of the solicitation of said Henry...