Gray v. Cooper
| Decision Date | 01 July 1925 |
| Parties | JOHN A. GRAY, Respondent, v. F. W. COOPER, Appellant. |
| Court | Missouri Court of Appeals |
Appeal from the Circuit Court of Phelps County.--Hon. W. E. Barton Judge.
REVERSED AND REMANDED.
Judgment reversed and cause remanded.
Frank H. Farris, of Rolla, and Harry Clymer, of Steelville, for appellant.
(1) The contract sued on was unilateral and void for want of mutuality. In order to constitute a valid contract there must be mutuality of agreement, and any contract which undertakes to create liability as to one party without liability upon the other is void as to both. Hudson v. Browning, 264 Mo. 58; Reigart v. Coal & Coke Co., 217 Mo. 142; Campbell v. Handle Co., 117 Mo.App. 19; Halloway v. Creamery Co., 286 Mo. 499, 228 S.W. 451; Coal Co v. Ed. E. Squire Co., 219 S.W. 697-8. The plaintiff admitted he had not given the written guarantee for the payment of the purchase price of the clay, as he contracted to do. Before one party can recover for breach of a contract he must go farther than to show default of the other party he must show he has performed, or has offered to perform, his part of the contract. This is an imperative requirement of the law. Browning v. Railway Co., 188 S.W. 149; Meyer v. Christopher, 176 Mo. 594; Cement Co. v Ullman, 159 Mo.App. 251 and 253. The petition in this case alleged full performance by the plaintiff of all the terms and conditions of the contract and there could be no recovery except on that basis. Advertising Co. v. Bank, 242 S.W. 117. The court, in the case just cited, says: It was reversible error to admit parol testimony tending to vary, modify or change the terms and conditions of the written contract. The contract was one required by law to be in writing. Plaintiff based his cause of action and right to recover on such written contract, and such contract could not be varied, modified or changed by parol testimony. Warren v. Mayer Mfg. Co., 161 Mo. 112; Mining Co. v. Mining Co., 202 S.W. 288; Refrigerator Co. v. Teasdale Co., 211 S.W. 693; Fuller v. Presnell, 233 S.W. 505; Arky v. Brockman Com. Co., 185 Mo.App. 248, 170 S.W. 353; Rucker v. Harrington, 52 Mo.App. 481; Rogers v. Fremder, 261 S.W. 110. It has long been the rule in this State that a party cannot sue on an express contract and then recover upon a different contract, or upon a modified form of the contract. Carman v. Harrah, 182 Mo.App. 365, 170 S.W. 392; Quigley v. King, 182 Mo.App. 196, 168 S.W. 288; Lumber Co. v. Lumber Co., 253 S.W. 123; Koons v. St. Louis Car Co., 203 Mo. 254; Construction Co. v. Iron Works, 169 Mo. 154. It is also well settled in this State that under a plea of performance in a suit on a contract, proof of waiver of performance or of other excuse for non-performance is inadmissible and evidence of such character cannot be allowed to enlarge the scope of the pleadings. Mould v. Coal Co., 237 S.W. 203; State ex rel. v. Ellison, 192 S.W. 725; Cement Co. v. Ullman, 159 Mo.App. 235, 140 S.W. 620. If a contract has been modified the party suing thereon must plead and stand on the modification. Lumber Co. v. Lumber Co., 253 S.W. 123; Koons v. St. Louis Car Co., 203 Mo. 259. The trial court erred in permitting the witness Krusen to refresh his memory by referring to a plat and to memoranda. This plat and memoranda were not made by him and it was not shown that he knew them to be correct, or that they were correct. Traber v. Hicks, 131 Mo. 180. Assuming, but not conceding, the contract was enforceable, and that plaintiff had a cause of action on account of its breach, what was his measure of damages? The measure of damages was the difference between the contract price and the market value of the clay at the place of delivery at the time of the breach. Flour Mills Co. v. Miller, 238 S.W. 510; Riddle v. Castner, 202 Mo.App. 584, 209 S.W. 127; Mayo v. Brokerage Co., 218 S.W. 933; Brown v. Asphalt Co., 210 Mo. 273. The burden was on the plaintiff to show the damages, if any, he had sustained. Brown v. Asphalt Co., 210 Mo. 274; Flour Mills Co. v. Miller, 238 S.W. 511. He failed to meet this requirement of the law, as there was not a particle of evidence of the value of the clay at St. James, Mo., and no evidence that there was no market for such product there, consequently there was no evidence to warrant any finding and judgment for the plaintiff, unless it be for nominal damages. Flour Mills Co. v. Miller, 238 S.W. 511. Speculative profits are not recoverable in an action for damages on account of breach of contract. Implement Co. v. Machine Co., 268 Mo. 363. Instruction No. 1 given for the plaintiff was erroneous. In that instruction the court told the jury that if defendant entered into a contract with the plaintiff whereby defendant agreed to sell and the plaintiff agreed to buy three cars of clay for shipment, and if returns thereof were satisfactory to plaintiff that plaintiff would given defendant an order for twenty-five or more cars, not exceeding the capacity of the pit, and if said three cars were furnished and shipped and returns were satisfactory to plaintiff, and if plaintiff then gave defendant an order for the entire product of said pit, and that defendant proceeded to mine and deliver clay then "said order was accepted by defendant and constituted a contract between said parties for the entire capacity of the pit" and if defendant refused to deliver the remainder of the fire clay in the pit they should find the issues for the plaintiff. This suit was based on a written contract, plaintiff pleading full performance. This instruction broadened the issues made by the pleadings; in fact it submitted issues not raised by the pleadings, and is clearly erroneous. Tucker v. Bank & Trust Co., 251 S.W. 409; State ex rel. v. Ellison, 270 Mo. 653, 195 S.W. 724; State ex rel. v. Melton, 251 S.W. 448; Fadler v. Dry Goods Co., 251 S.W. 141. Instruction No. 2 given for the plaintiff is manifestly erroneous. By it the jury was instructed that if plaintiff arranged with the St. James State Bank and the parties to whom clay was shipped whereby returns were to come to the bank, and the bank was to pay defendant, and defendant accepted and acted upon such arrangement, then no guarantee was necessary. It substituted an alleged arrangement made by the plaintiff with third parties for, and in the place of, the written condition of the contract between the plaintiff and defendant. It permitted recovery on the part of the plaintiff, notwithstanding he had not complied with the contract; in fact, it told the jury that plaintiff did not have to comply with the terms of the contract, but could substitute an arrangement of his own. The well-established rule in this State is that instructions cannot be broader than the pleadings, whatever may be the scope of the evidence, and an instruction which submits issues not raised by the pleadings is reversible error. Young v. Dunlap, 195 Mo.App. 119, 190 S.W. 1043; Paper Co. v. Shilkee, 237 S.W. 111; Tucker v. Bank & Trust Co. , 251 S.W. 409; State ex rel. v. Melton, 251 S.W. 448. A plaintiff must put his case to the jury upon the precise case made by his petition and proof. And while the petition may be broader than the proof, the proof must not be broader than the petition, and the instructions must not be broader than the proof thus limited by the petition. Simms v. Dunham, 203 S.W. 653; McKenzier v. Randolph, 238 S.W. 829. No rule is better settled in this State than that instructions must be confined to the issues raised by the pleadings and supported by the evidence within the limits of the pleadings. Florina v. Railroad, 260 S.W. 125; Degonia v. Railroad, 224 Mo. 589.
Jones Bros. and Lortz & Breuer, of Rolla, for respondent.
(1) The contract between plaintiff and defendant is mutual and reciprocal, and by the weight of relevant authority the contract was not lacking in either consideration or mutuality. (a) Rozier v. Railroad, 147 Mo.App. 290; Loudenback Fertilizer Co. v. Tennessee Phosphate Co., 121 F. 298; Grand Prairie Gravel Co. v. Joe B Wills Co., 188 S.W. 680; Lima Locomotive & Machine Co. v. Steel Castings Co., 155 F. 77; Silver Mining Co. v. Smelting & Ref. Co., 16 Colo. 118; Ramey Lumber Co. v. Schroder Lumber Co., 237 F. 39; Warren v. Coal Co., 200 Mo.App. 442; Baker v. Railway Co., 91 Mo. 157; Clein v. Johnson, 191 Mo.App. 453; Moss v. Green, 41 Mo. 390; Scriba v. Neely, 130 Mo.App. 258; Green v. Whaley, 271 Mo. 654; 13 Corpus Juris, 339. (b) To make a contract unilateral and thereby void, it is essential that there should be no mutuality of obligation, that only one party thereto should be bound. Royal Brewing Co. v. St. Louis Brewing Association, 188 Mo.App. 679; Laclede Construction Co. v. Tudor Iron Works, 169 Mo. 137; Eaton v. Coal Co., 125 Mo.App. 194. (c) The contract in question being an obligation on the part of defendant to sell and deliver and plaintiff to buy and pay for, makes it a mutual contract and bilateral. 13 Corpus Juris, 339; Meier Dental Mfg. Co. v. Smith, 237 F. 563; Ayer Tie Co. v. O'Bannon, 174 S.W. 783; Binder v. Binder, 187 S.W. 735. (d) A contract which might have lacked mutuality at first, becomes binding by performance. Reynolds v. Walsh-Griffith Tie & Lumber Co., 227 S.W. 438; 6 Ruling Case Law, 686; Molloy v. Egyptian Tie & Timber Co., 247 S.W. 469; Rozier v. Railroad, 147 Mo.App. 298; Railroad Co. v. Coyl, 8 L. R. A. (N. S.) 433; Herrick v. Wardwell, 58 Ohio St. 299, 288 S. 255; Martin v. Ray County Coal Co., 232 S.W....
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