Eads v. City of Carondelet

• Decision Date: 31 October 1867
• Citation: 42 Mo. 113
• Parties: JAMES B. EADS, Plaintiff in Error, v. THE CITY OF CARONDELET, Defendant in Error.
• Court: Missouri Supreme Court

42 Mo. 113

JAMES B. EADS, Plaintiff in Error,

v.THE CITY OF CARONDELET, Defendant in Error.

Supreme Court of Missouri.

October Term, 1867.

Appeal from St. Louis Circuit Court.

Glover & Shepley, for plaintiff in error.

I. The second section of defendant's ordinance did not have the effect to withdraw the positive acceptance made in the first section, or in the least to modify it. The city council of Carondelet no where intimate that they take back their acceptance. On the contrary, they direct their agent to enter into a written agreement embracing the terms of Eads's proposition. They tell him to close the contract between said city and Eads. The ordinance embraces every element of a contract agreed on and in writing. The real expressed intention is that the writings, when drawn, after setting forth the terms of Eads's proposition, shall embrace also “such further conditions as may be deemed necessary.” But it is not said that the absence of any named condition shall defeat the contract already made.

II. In order to constitute a binding contract, there must be a definite promise by the party charged, accepted by the person claiming the benefit of such promise. (Chitty on Cont. p. 9, 5th Am. ed.)

III. In contracts, justice should be done between the parties by enforcing a performance of their agreement according to the sense in which they mutually understood it at the time it was made. (Chitty on Cont. p. 73, 5th Am. ed.) In this case, the fact that Eads immediately complied with the agreement on his part not only manifested his understanding, but fixed on the city council the knowledge of the manner in which he received their acceptance of his proposition. As to construction of contracts of the above nature, see, generally, 11 Verm. 583; 10 Pick. 230; 14 Verm. 311; 19 Verm. 202; 6 B. Mon. 619; 3 Story, 122, 273; 2 Shepley, 233.

Jecko & Clover, for defendant in error.

I. A mere voluntary compliance with the conditions of the proposed contract by the plaintiff did not render the defendant liable on the contract. (Johnson v. Fessler, 7 Watts, 48; Ball v. Newton, 7 Cush. 599; Meynell v. Surtees, 31 E. Law & Eq. 475.)

II. The proposition for a contract set forth in the petition could only become a binding contract when met by an acceptance which corresponded with it entirely and adequately, leaving nothing further to be done to complete the contract. (Honeyman v. Marryatt, 6 H. L. Cas. 112; Hough v. Brown, 19 N. Y.; 5 Smith's Ct. of App. 111; Taylor v. Rennie, 35 Barb., N. Y., 272; McColter v New York, 35 Barb., N. Y., 609; Underhill v. N. Am. Ins. Co., 36 Barb., N. Y., 354; Hutcheson v. Blakeman, 3 Met., Ky., 80; Crane v. Portland, 9 Mich. 493; Brown v. Rice, 29 Mo. 322.) Where one party proposes a certain bargain, and the other agrees, subject to some modification or condition, there is no mutuality of contract until there has been an express assent to it so modified; otherwise it would not be obligatory on both parties, and would therefore be void. (Boyd v. Hind, L. T., N. S., Exch. 246.) By defendant's ordinance, the proposition of Mr. Eads was simply not accepted. The city contemplated a written agreement which was to embrace not only the proposition mentioned in the first section of the ordinance, but which, it is expressly declared, was to contain such further conditions as might be necessary, and to close the contract, as yet open and unclosed, between the city and Eads. (Barker v. Allan, 5 Hurl. & Norman Exch. 67; Jordan v. Norton, 4 Mees. & W. 155; Cooke v. Oxley, 3 Tenn. 653; Routledge v. Grant, 15 Eng. C. L. Rep. 99; Hutchison v. Bowler, 5 Mees. & W. 535; Ridgway v. Wharton, 6 H. L. Cas. 257; Fenno v. Weston, 31 Verm. 351; Andrews v. Garrett, 6 C. B., N. S., 262; Esmay v. Groton et al., 18 Ill. 487; Carr v. Duvall et al., 14 Pet. 81; Eliason v. Henshaw, 4 Wheat. 228.)

WAGNER, Judge, delivered the opinion of the court.

This case is brought before us on a writ of error, prosecuted from a decision of the court below, sustaining a demurrer to the plaintiff's petition. The plaintiff alleges in his petition that on the 23d day of May, 1862, he had entered into a contract with the government of the United States to build and construct six gunboats; that in the construction of the boats a large number of persons would necessarily have to be employed, and a large quantity of money disbursed; that defendant was anxious to have the boats built within its corporate limits; and that one William Taussig, on behalf of the city council, representing the defendant, requested the plaintiff to submit to the said city council a proposition stating upon what terms he would build said boats and establish his boat-yard in the said city of Carondelet, and thereupon the plaintiff did, on the said 23d day of May, 1862, make to the city council a proposition in writing, addressed to William Taussig.

The letter containing the proposition and the terms on which plaintiff would agree to build his boats and establish his boat-yard in Carondelet is set out at length in the petition. The proposition was to be open for the acceptance and approval of the city council until the next day at noon. The petition further alleges that on the 24th day of May, 1862, and before noon of that day, the city council of the city of Carondelet did pass an ordinance of said city, which was then and there duly approved by the mayor thereof, which is as follows:

“No. 381. An ordinance authorizing the mayor to enter into a contract with James B. Eads.

Be it ordained by the City Council of the city of Carondelet, as follows:

SECTION 1. That the proposition of James B. Eads, addressed to Dr. Wm. Taussig, bearing date 23d May, 1862, and submitted to the city conncil at a meeting held on said day, relative to the building within the city limits of the city of Carondelet of six iron gunboats, the erection of machine-shops, ways, and the construction of a boat-yard, to be a permanent establishment for five years from...