Forbs v. St. Louis, Iron Mountain & Southern Ry. Company

• Decision Date: 18 October 1904
• Citation: 82 S.W. 562,107 Mo.App. 661
• Parties: FORBS, Appellant, v. ST. LOUIS, IRON MOUNTAIN & SOUTHERN RAILWAY COMPANY, Respondent
• Court: Missouri Court of Appeals

82 S.W. 562

107 Mo.App. 661

FORBS, Appellant, v. ST. LOUIS, IRON MOUNTAIN & SOUTHERN RAILWAY COMPANY, Respondent

Court of Appeals of Missouri, St. Louis

October 18, 1904

Appeal from Butler Circuit Court.--Hon. J. L. Fort, Judge.

Judgment affirmed.

David W. Hill for appellant.

(1) A release is construed as a covenant not to sue. Arnett v Railway, 64 Mo.App. 368. (2) Then, as a release is a simple contract not to sue, it must be supported by a valuable consideration. The promise of the servant, in this case, not to sue, was made wholly without consideration, the alleged release being a mere nudum pactum, and can not be enforced at law. Clark on Contracts, p. 153, sec. 66; 1 Parsons on Contracts (6 Ed.), p. 447; Broom's Legal Maxims (8 Ed.), p. 745. (3) "Though the consideration need not be adequate to the promise, it must not be illusory or unreal; some real benefit must be conferred on the promisor, or some real detriment suffered by the promisee." Clark on Contracts, sec. 72, p. 164; Green v. Highman, 161 Mo. 333, 61 S.W. 798; Chenoweth v. Express Co., 93 Mo.App. 185; Hill v. Railway, 82 Mo.App. 188; Lamp Co. v. Electrical Mfg. Co., 64 Mo.App. 115; Marks v. Bank, 8 Mo 319; St. Louis v. Gas Co., 70 Mo. 116; Lancaster v. Elliott, 55 Mo.App. 254. (4) "Another form of unreality of consideration is where the alleged consideration is a promise to do, or actually doing, what a person is already bound to do. The promisor gets no more in return for his promise than the promisee was already bound to give, and therefore receives no consideration. Such prior obligation may arise from a previous contract, or from law independently of contract." In the case at bar, in the alleged release, the master simply agreed to re-employ the servant for such time as would be satisfactory to the company only, when the servant was already employed by the company by the month. Clark on Contracts, p. 184; Bishop on Contracts (2 Ed.), p. 50, sec. 48; 1 Parsons on Contracts (6 Ed.), pp. 458 and 459; Tucker v. Bartle, 85 Mo. 114; Jennings v. Chase, 10 Allen (Mass.) 526; Warren v. Hodge, 121 Mass. 106; Schuler v. Myton, 48 Kan. 282; Ayres v. Railway, 52 Iowa 478; Holmes v. Boyd, 90 Ind. 332; Vanderlip v. Schreyer, 91 N.Y. 392; Keffer v. Grayson, 76 Va. 517; 3 Am. and Eng. Ency. of Law, pp. 830-834. (5) The consideration stated in the alleged release in this case is an agreement on the part of defendant to re-employ plaintiff "for such time only as may be satisfactory to said company," the defendant. The written contract does not fix the term of employment, and the option to fix the term was not given to plaintiff, but was reserved by the defendant. Where the term of employment is thus left indefinite, either party may put an end to it at will, and without cause. Plaintiff did not, by the conditional promise of re-employment, acquire any valuable or enforcible right, and the alleged release, on its face, shows no such consideration as would be sufficient to bar a recovery herein. Railway v. Scott, 72 Tex. 70; Railroad v. Wilson, 24 S.W. 686.

Martin L. Clardy and Louis F. Dinning for respondent.

(1) The evidence copied by appellant in his abstract of the record was not preserved in the bill of exceptions filed in this cause. Therefore said evidence is not before this court for review or examination. This being the case the only point open for examination by this court, is the record proper. Section 2304, Revised Statutes 1889, was carried into the revision of 1899, without change, and is section 866 of that revision. In 1903 the Legislature of this State amended section 866 by striking out the words: "The motion for a new trial, in arrest of judgment or instructions filed in the lower court," and inserting in lieu thereof, the words: "Any pleading, motion, instruction or record entry in the case, or any written or printed matter offered in evidence upon the trial and properly identified and deposited with the clerk to remain in his custody until after the determination of the cause in the appellate court." Laws 1903, p. 105. (2) It will be observed that the only change made in said section 866, by the amendment aforesaid, so far as the same relates to the preservation of evidence by bill of exceptions, is by the following words: "Or any written or printed matter offered in evidence upon the trial and properly identified and deposited with the clerk, to remain in his custody until after the determination of the cause in the appellate court, shall be copied or set forth in the bill of exceptions filed in the lower court." The only kind of evidence that can be preserved in a bill of exceptions, without being copied therein is "any written or printed matter offered in evidence upon the trial and properly identified and deposited with the clerk, to remain in his custody until after the determination of the cause in the appellate court." Section 10129, Revised Statutes, which was section 8259, Revised Statutes 1889, provides for a court stenographer to make a transcript of the testimony taken at a trial, when required by appellant or plaintiff in error, in civil cases. Tipton v. Renner, 105 Mo. 1; State ex rel. Harber v. Wear, 101 Mo. 414, 14 S.W. 115; Roberts v. Bartlett, 26 Mo.App. 611; Morrison v. Lehew, 17 Mo.App. 635.

REYBURN, J. Bland, P. J., and Goode, J., concur.

OPINION

REYBURN, J.

1. From judgment in an action for damages for personal injuries upon verdict for defendant rendered by a jury, in obedience to an imperative instruction to so find, given by the court at close of the testimony introduced by him, plaintiff has appealed. At the threshold of this case, we are confronted by the objection of respondent to the record on the ground that the evidence, which was made up entirely of oral testimony elicited from plaintiff and his witnesses, was not properly embodied in the bill of exceptions. At the June term, 1903, plaintiff's motion for a new trial, filed at the June term of the previous year, was overruled and plaintiff appealed, being granted sixty days from June 19, 1903, in which to file bill of exceptions. On July 27, 1903, plaintiff filed with the clerk of the circuit court a bill of exceptions duly signed by the trial judge; this bill was in skeleton form and the evidence introduced at the trial was not copied therein, being in full as follows:

"Now on this twenty-seventh day of July, 1903, comes the plaintiff in the above-entitled cause, and files herein his bill of exceptions, which bill of exceptions is in words and figures following:

"On the seventeenth day of June, 1902, it being the fourteenth day of the June term of said court, the above cause was tried in said court before the judge thereof and a jury when the following proceedings were had and the following evidence was introduced, as fully set forth in the official stenographer's certified transcript of said evidence filed in the office of the clerk of said court on the twenty-second day of July, 1903, which said transcript of the evidence is in the words and figures following: (Clerk, here please copy same).

"This was all the evidence offered.

"And on the twenty-first day of June, 1902, it being within four days after the taking of the involuntary nonsuit in said cause in said court, the plaintiff filed in said court his motion to set aside his nonsuit and to grant him a new trial herein, which said motion to set aside the nonsuit is in the words and figures following: (Clerk, here please copy same).

"And on the fifth day of June, 1903, it being the fifth day of the June term of said court, after plaintiff's motion to set aside the nonsuit herein had been continued until that time, the court overruled plaintiff's said motion to set aside said nonsuit, by an entry of record in the words and figures following: (Clerk, here please copy said order). To which ruling and order of the court the plaintiff, by his attorney, then and there duly objected and excepted.

"And that the above matters and things, rulings and exceptions may be made a part of the record, plaintiff tenders this his bill of exceptions, and prays that the same may be signed and sealed as such, which is accordingly done, this twenty-seventh day of July, 1903.

"J. L. FORT, (Seal.)

"Judge of the Butler County Circuit Court.

"'O. K.' DAVID W. HILL.

"Attorney for Plaintiff.

" ,

"Attorney for Defendant."

Appellant, in reply to this objection urged by respondent, has answered that on the twenty-second day of July preceding, the official stenographer's transcript of the testimony was duly filed in the office of the clerk of the court, and later attached to the bill of exceptions, forwarded to the attorney of respondent, and by him returned to plaintiff's attorney with suggestions of a few words additional to the testimony, to which the latter assented and such additions were made, and later the skeleton bill, previously signed by the trial judge, together with the transcript of the testimony, was exhibited to him, approved and filed in the office of the clerk of the circuit court, but these latter facts of course do not appear in the record.

By enactment of the Forty-second General Assembly, section 866, Revised Statutes 1899, was amended so that after June 21, 1903, when the laws of 1903 became operative it was no longer necessary that any pleading, motion, instruction or record entry in a case, or any printed or written matter offered in evidence at the trial, properly identified and deposited with the clerk to remain in his custody till after determination of the cause in the appellate court, should be copied or set forth in the bill of exceptions filed in the lower court, provided such bill contained directions for the clerk to copy them and they were copied into the record sent to ...