Fleming v. Mulloy

• Decision Date: 04 April 1910
• Citation: 143 Mo. App. 309,127 S.W. 105
• Parties: FLEMING v. MULLOY
• Court: Missouri Court of Appeals

127 S.W. 105

143 Mo. App. 309

FLEMING v. MULLOY

Springfield Court of Appeals. Missouri.

April 4, 1910.

1. CONTRACTS (§ 334) — ACTION ON — PLEADING — ALLEGING CONSIDERATION.

In an action on a written contract, it is not necessary to allege consideration, as a written contract imports a consideration.

2. CONTRACTS (§ 116) — VALIDITY — RESTRAINT OF TRADE AND COMPETITION.

A contract "to sell or rent" certain property "only to parties who agree to buy and handle" the beer of a certain company does not prevent the occupant of the property from handling other beers, and hence is not in restraint of competition in trade, in violation of Rev. St. 1899, § 8978 (Ann. St. 1906, p. 4157).

Appeal from Circuit Court, Greene County; James T. Neville, Judge.

Action by W. J. Fleming against Kate E. Mulloy. Defendant had judgment, and plaintiff appeals. Reversed.

R. H. Davis, for appellant. T. D. Steele, for respondent.

NIXON, P. J.

This was an action commenced in the circuit court of Greene county. The amended petition sets forth the following contract: "Witnesseth: That said party of the first part has this day sold to the said party of the second part the Anheuser-Busch Brewing Agency at Monett and Pierce City, Missouri, and two horses and also the soda water factory at Pierce City together with bottles, cases and stock now on hand for the price and sum of two thousand dollars, one thousand dollars to be paid down in cash and the other in one note for one thousand dollars due on or before twelve months with six per cent. interest. Said party of the first part agrees to sell or rent the lots now occupied by A. B. Clark and E. S. Sherman in the city of Monett, Mo., only to parties who agree to buy and handle Anheuser-Busch beer for a period of two years and a like or same contract on the saloon property at Pierce City, Missouri, so long as said party owns or controls said property. In witness whereof, we have hereunto set our hands this 9th day of December, 1905. [Signed] Kate E. Mulloy. W. J. Fleming."

It is then alleged that, at the time of the execution of said contract, defendant was the owner of two saloon properties in the city of Monett and one saloon property in Pierce City; that defendant sold to plaintiff the Anheuser-Busch Brewing Association Agency in these two cities, agreeing that her tenants or vendees would for a period of two years only buy and handle Anheuser-Busch beer and that they would buy the same exclusively of the plaintiff; that defendant sold the Monett properties to persons who refused to purchase beer of plaintiff; that defendant rented the Pierce City property to a tenant who likewise refused to buy beer of the plaintiff; that, if the parties had purchased beer of plaintiff as defendant had contracted, the sales for the period of two years would have yielded plaintiff $5,000. The defendant demurred to this petition: (1) Because said petition does not state facts sufficient to constitute a...