Gale v. J. Kennard & Sons Carpet Co.

Decision Date07 April 1914
Citation165 S.W. 842,182 Mo.App. 498
PartiesSPENCER H. GALE, Respondent, v. J. KENNARD & SONS CARPET COMPANY, Appellant
CourtMissouri Court of Appeals

Appeal from St. Louis City Circuit Court.--Hon. George H. Shields Judge.


Judgment affirmed.

Luther Ely Smith for appellant.

(1) Defendant's demurrers to the evidence should have been sustained. As to the first count: (a) There was no express contract as pleaded. Plaintiff's letter of November 5 1909, even though the defendant had actually written upon it the words "Accepted for one year," was too indefinite and uncertain to constitute a contract. No figure as to compensation was named either in that letter or in the February conversation relied on, or in any intervening communication, nor was any mention made of any one of numerous other items set out in minute detail and regarded as essential in each of the preceding contracts. Unless the terms in an offer are sufficiently definite to form the basis of a contract, an acceptance does not constitute a meeting of the minds and there is no contract. Stone v. Union Trust Co., 150 Mo.App. 331, 341-2; Lee v. Dodd, 20 Mo.App. 271; Whedon v. Ames, 28 Mo.App. 203; Bourne v. Shapleigh, 9 Mo.App. 64; Methudy v Ross, 10 Mo.App. 101; Sparks v. Pittsburg Co., 159 Pa. 297; 1 Page on Contracts, Secs. 27, 45; Elliott on Contracts, Sec. 27; Northrup v. Coulter, 150 Mo.App. 639; Eaton v. Coal Co., 125 Mo.App. 194; Van Slyke v. Broadway Ins. Co., 115 Cal. 664; 9 Cyc. 249; Concannon v. Mining & Milling Co., 156 Mo.App. 79; Gray v. Railroad, 143 Mo.App. 251; Strange v. Crowley, 91 Mo. 287; Chapin v. Cherry, 243 Mo. 375; Havens v. Ins. Co., 11 Ind.App. 315; Ridgway v. Wharton, 6 H. L. Cas. 304; Jones v. Daniel, 2 Ch. 332; Hassey v. Horn Payne, 4 App. Cas. 311; Baurman v. Binzen, 16 N.Y.S. 342; Appleby v. Johnson, L. R. 9 C. P. 158; Anderson v. Dezonia, 23 Ill.App. 422. (b) There was no express contract as pleaded. Preliminary negotiations are insufficient to constitute a contract. Plaintiff's letter of November 5, 1909, shows on its face that it was but a preliminary step in negotiations, leading up to a formal proposal--it was, as plaintiff in said letter denominates it, a "suggestion," an "expression of his (plaintiff's) views," as plaintiff also describes it. The acceptance of a letter, statement or inquiry constituting a preliminary step and not an offer constitutes no contract. 1 Page on Contracts, Secs. 26, 27; Elliott on Contracts, Sec. 27; Bourne v. Shapleigh, 9 Mo.App. 64; Methudy v. Ross, 10 Mo.App. 101; Ford v. Gebhart, 114 Mo. 298; Cheney v. Bigelow Wire Works, 142 Mass. 442; Commercial Telegraph Co. v. Smith, 47 Hun, 494; Gray v. Railroad, 143 Mo.App. 251; James & Sons v. Fruit Jar Co., 69 Mo.App. 207. (c) There was no express contract as pleaded. No written or formal contract was drawn. The undisputed testimony clearly shows that it was contemplated that a definite written draught of contract, embodying specific details should be drawn and that on that written draught, if at all, there should be a meeting of the minds and not otherwise. The "acceptance" of his November 5, 1909, letter was not and could not be regarded as constituting a meeting of the minds. Railroad v. Joseph, 169 Mo.App. 174, 182; Mfg. Co. v. Lumber Co., 115 Mo.App. 114; Methudy v. Ross, 10 Mo.App. 101; Bourne v. Shapleigh, 9 Mo.App. 64; Spinney v. Downing, 108 Cal. 666; Des Boulets v. Gravier, 1 Mart. (La. N. S.) 420; Morrill v. Railroad, 10 Nev. 125; Tel. Co. v. Smith, 47 Hun, 494; Sparks v. Pittsburg Co., 159 Pa. 295; Runyon v. Wilkinson, 57 N.J. L. 420; Water Comrs. v. Brown, 32 N.J. Law (3 Vroom. 504). (d) There was no express contract as pleaded. A qualified acceptance is a rejection of the original offer. Even though the letter of November 5, 1909, could be regarded as sufficient in law to constitute a contract when unqualifiedly accepted, yet the evidence shows that it was not unqualifiedly accepted as made. The letter of November 5, 1909, if regarded as an offer, offered three things--guarantee of no less than in previous years; a closer alliance to the department and the house; and a tenure of service of more than twelve months. The alleged "acceptance" "for one year" was a rejection of the original offer, which original proposition is again renewed by plaintiff, and never accepted. There was no meeting of the minds. Chapin v. Cherry, 243 Mo. 375; Northrup v. Colter, 150 Mo.App. 639; Cangus v. Rumsey, 37 Mo.App. 297; Strange v. Crowley, 91 Mo. 287; Bruner v. Wheaton, 46 Mo. 213; Scott v. Davis, 141 Mo. 213; Union Service Co. v. Drug Co., 148 Mo.App. 327; Taylor v. Von Schraeder, 107 Mo. 206; Green v. Cole, 103 Mo. 70; Eads v. City of Carondalet, 42 Mo. 113; Robinson v. Farrell & Estes, 53 Mo.App. 582; Brecheisen v. Coffey, 15 Mo.App. 80; Jordan v. Norton, 4 M. & W. 155; 6 Ruling Cas. 142; Hyde v. Urench, 3 Beav. 334, 337; Sarran v. Richards, 151 Mo.App. 656; Lawson on Contracts, Sec. 16; Batavia v. Railroad, 126 Mo.App. 13; VerSteeg v. Becker-Moore Paint Co., 106 Mo.App. 257; Railroad v. Joseph, 169 Mo.App. 174; Mfg. Co. v. Lumber Co., 115 Mo.App. 114; Jordan v. Norton, 4 M. & W. 155 (s. c. 7, L. J. Ex. 281); Minneapolis, Etc., Co. v. Columbus Rolling Mills, 119 U.S. 149; Holland v. Eyre, 2 Simons & Stuart 194; Water Comrs. v. Brown, 32 N.J. Law (3 Vroom.) 504; Glass Works v. Barnes & Co., 86 Hun. 374, 376; Yore v. Bankers' Assn., 88 Cal. 609; Lewis v. Johnson, 143 N.W. 1127; Egger v. Nesbit, 122 Mo. 667; Morrell v. Tehama Con. M. & M. Co., 10 Nev. 125. (e) There was no express contract as pleaded. The construction placed by the parties themselves upon the contract defeats plaintiff's contention. Undisputed facts show that the parties by their conduct construed the terms of plaintiff's employment to be the same as in the year preceding the period in suit. Welch v. Mischke, 154 Mo.App. 728; Smith v. Crane, 169 Mo.App. 695; Shepard v. Bank, 15 Mo. 143; Powell v. Railroad, 65 Mo. 658; Shade v. Sisson, 115 Cal. 357; Kropp v. Brewing Co., 138 Mo.App. 49; Ideal Pump, Etc., Co. v. Ins. Co., 167 Mo.App. 566; Kirkeby v. White, 168 Mo.App. 626; Big Muddy Coal & Iron Co. v. St. Louis-Carterville Coal Co., 158 S.W. 420; Austin v. Shipman, 160 Mo.App. 206; Bank v. Hanks, 142 Mo.App. 110; Union Depot Co. v. Railroad, 131 Mo. 291; Topliff v. Topliff, 119 U.S. 149; Rose v. Carbonating Co., 60 Mo.App. 28. (f) There was no express contract as pleaded. A contract or bargain which in legal effect is "snapped up" is void. The undisputed evidence clearly shows that plaintiff "snapped up" the bargain with defendant knowing that Mr. Kennard was not thinking of the amount of compensation or anything else except the period of plaintiff's continuance in defendant's employ. The contract so attempted is void. Page on Contracts, Sec. 146; Singer v. Grand Rapids Match Co., 117 Ga. 86, 89; Manter v. Truesdale, 57 Mo.App. 435, 444; Germain v. Western Union Co., 137 Cal. 598. (2) As to the second count. There being no new express contract, the express contract for the previous year continued in full force, not only for the year ending November 30, 1910, covered by the first count, but through the period of five months covered by the second count. Bell v. Peper Tobacco Warehouse Co., 205 Mo. 475. And while plaintiff may disregard the express contract and sue upon an implied contract, he may not recover in excess of the express contract. (Plaintiff admits payment in compliance with the terms of that contract.) Suits v. Taylor, 20 Mo.App. 166; Davidson v. Bierman, 27 Mo.App. 655. (3) There is a failure of proof as to the first count. The contract pleaded in the first count was for a "salary," the contract proven (if proven) was for a "guarantee." The previous contracts, carefully drawn, and the conduct of the parties show that they fully understood the meaning of each of these terms, and could and did use them accurately and intentionally. Plaintiff having pleaded one contract and proven another, should have been nonsuited. Laclede Construction Co. v. Tudor, 169 Mo. 137; Cole v. Armour, 154 Mo. 333, 350, 351; Taylor v. Sebastian, 158 Mo.App. 147, 155-6; Beck v. Ferrara, 19 Mo. 30; Barber v. Ozark Implement Co., 131 Mo.App. 717; Henderson v. Koenig, 168 Mo. 366; State ex rel. v. Speed, 183 Mo. 186; People ex rel. v. Myers, 42 Abb. L. J. 332, 11 N.Y.S. 217; Philibert v. Burch, 4 Mo.App. 470; Weems v. Delta Moss Co., 33 La. Ann. 971; Davis v. Drew, 132 Mo.App. 505; Mansur v. Botts, 80 Mo. 651; Lowry v. Mining Co., 65 Mo.App. 266; Leggett v. Exposition Co., 157 Mo.App. 115; Union Service Co. v. Moffet West D. Co., 148 Mo.App. 327; Benedict v. U.S. 176 U.S. 357; McNulta v. Corn Belt Bank, 164 Ill. 427; Thompson v. Phillips, 12 Ohio St. 617-8. (4) The court erred in giving plaintiff's first instruction. It submitted a question of law to the jury as to what constitutes a contract, rather than a question of fact. Bass v. Jacobs, 63 Mo.App. 393; Chapman v. Railroad, 146 Mo. 481. (5) The court erred in excluding the letters passing between plaintiff and defendant. The contents of those letters and particularly that of February 25, 1910 (after or on the day that plaintiff claimed the February conversation occurred) were most persuasive evidence in support of the defense. Nor did the general statement permitted by the court, namely, that they were business letters and contained no reference to compensation or employment cure the error. They should have been admitted so that the jury might themselves see and know the extent of the dealings and communications between plaintiff and defendant's president. Higgins v. Dellinge, 22 Mo. 397; Warlick v. Patterson, 58 Mo. 408.

Jones, Hocker, Hawes & Angert filed argument for respondent.

ALLEN, J. Reynolds, P. J., and Nortoni, J., concur.



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