Hudson v. Browning

• Citation: 174 S.W. 393,264 Mo. 58
• Parties: J. H. HUDSON et al., Appellants, v. E. T. BROWNING
• Decision Date: 02 March 1915
• Court: Missouri Supreme Court

174 S.W. 393

264 Mo. 58

J. H. HUDSON et al., Appellants, v. E. T. BROWNING

Supreme Court of Missouri, First Division

March 2, 1915

Appeal from Cole Circuit Court. -- Hon. R. A. Breuer, Special Judge.

Affirmed.

Charles M. Hay and A. T. Dumm for appellants; N. T. Gentry of counsel.

(1) In an action for a breach of contract, the first point necessary for the court to ascertain is whether or not a valid contract was entered into between plaintiff and defendant. The evidence shows that the plaintiffs went to work under this contract, made a large number of the railroad ties, which were the subject of the contract, and that a large number of these ties were delivered to the defendant and paid for by him. (2) In a case where a plaintiff executed a contract with a railroad company to make and deliver two hundred thousand ties, and a part of said ties were made and delivered, and the defendant's tie agent wrote plaintiff a letter "not to get out any more," and a suit was brought for damages, this court said, "It has been repeatedly held that where a party engaged in the performance of his contract is notified by the other party to proceed no further, the party so notified is fully justified in quitting the work and suing for damages for breach of contract." Chapman v. Railroad, 146 Mo. 493; Halpin v Manny, 57 Mo.App. 61; Gabriel v. Brick Co., 57 Mo.App. 520; Anson on Contracts (2 Am. Ed.), p. 373; Cort v. Railroad, L. R. 17 Q. B. 127; Derby v Johnson, 21 Vt. 17; Berthold v. Elec. Con. Co., 165 Mo. 304; Canda v. Wick, 100 N.Y. 127; Hincley v. Steel Co., 121 U.S. 246; Hosmer v Wilson, 7 Mich. 293; Clark on Contracts, p. 444; Bishop on Contracts, sec. 827; Bean v. Miller, 69 Mo. 384; Little v. Mercer, 9 Mo. 218; Pond v. Wyman, 15 Mo. 175; Nearns v. Harbert, 25 Mo. 352. (3) The proper measure of damages is what the plaintiffs would have received for completing the contract, less the cost to them of completing the same. Berthold v. Elec. Con. Co., 165 Mo. 304; Southerland on Dam. (2 Ed.), sec. 715; Gabriel v. Brick Co., 57 Mo.App. 520; Danforth v. Railroad, 93 Ala. 614; Heine v. Meyer, 61 N.Y. 171; Preble v. Battom, 27 Vt. 249. (4) The contract is definite and mutual. Trans. Co. v. Bolt & Nut Co., 114 F. 81; Rozier v. Railroad, 147 Mo.App. 297.

F. G. Harris and Ralph T. Finley for respondent.

The trial court properly sustained the defendant's demurrer at the close of the evidence, because the written contract sued on is void for lack of mutuality. (a) One party to a contract is not bound thereby when it does not bind the other party; when there is no liability, there is no obligation. 1 Parsons on Contracts (9 Ed.), p. 486, note. Where the parties assume to make a contract in which a promise is the consideration for a promise, and analysis shows that one of the promises does not impose any legal duty upon the party making it, such promise is not a consideration for the other promise. This is what is often meant by saying that promises must be mutual. 1 Page on Contracts, p. 452; Hammon on Contracts, p. 682; 7 Am. & Eng. Ency. Law (2 Ed.), 114. (b) The plaintiffs did not agree to furnish any certain number of ties, but on the contrary expressly provided that they did not agree to furnish any certain number. Therefore, as they were not bound themselves to furnish a definite number of ties and could not be made to respond in damages for failure to do so, they cannot recover damages from defendant for his failure to receive them. Campbell v. Handle Co., 117 Mo.App. 19; Jones v. Durgin, 16 Mo.App. 370; Coldblast Co. v. Bolt & Nut Co., 114 F. 77; Hoffman v. Maffioli, 104 Wis. 630. (c) The contract not only fails to designate the number of ties to be furnished by the plaintiffs, but it also fails to furnish any reasonable basis from which the number could be approximated. We admit that the exact number need not have been stated, but plaintiffs must have agreed to some basis from which the number could be computed. Rozier v. Railroad, 147 Mo.App. 298; Santaella v. Lang, 155 F. 719; Rehm-Zeiher Co. v. Walker & Co., 156 Ky. 6; Rockwell v. Knights Templar, 119 N.Y.S. 515; Higbie v. Rust, 211 Ill. 337. (d) It is well settled that the fact that a part of the ties were delivered under the contract, void for lack of mutuality, does not have the effect of dispensing with the necessity of mutuality, nor does it make such contract mutual. The contract is void because the plaintiffs were and are not bound thereby and the delivery and acceptance of a part of the ties had the effect of completing the sale of the ties so delivered. Campbell v. Handle Co., 117 Mo.App. 19; Cold Blast Co. v. Bolt Co., 114 F. 77; Rehm-Zeiher Co. v. Walker, 156 Ky. 6.

GRAVES, P. J. Blair, J., concurs; Bond, J., concurs in result; Woodson, J., concurs not only for the reasons expressed in the opinion, but also for reasons expressed in Reigart v. Coal Co., 217 Mo. 142.

OPINION

GRAVES, P. J.

Action for damages for alleged breach of contract. By the petition the damages are charged in the sum of $ 18,082.10. Plaintiffs were tie contractors doing business in Boone and Callaway counties. Defendant is a tie contractor doing business at Kansas City, Missouri. At the close of plaintiffs' case the court gave a peremptory instruction to find for the defendant, and so entered judgment, from which the plaintiffs have appealed. The crux of the case is the validity or invalidity of the following contract:

"Memoranda of Agreement and Specifications for Cross ties between J. H. Hudson & Phillip A. Cain of Ashland and Guthrie, Mo., parties of the first part, and E. T. Browning and Company of Kansas City, Missouri, parties of the second part.

"Witnesseth: The said first parties agree to make and purchase and deliver to the second party, and the second party agrees to purchase and receive from said first parties, all the No. 1, hewn, white, post, burr oak or black walnut ties that said first parties may be able to purchase or make up, to 200,000 ties; commencing on this date and ending June 1, 1911. Said first parties do not bind themselves to make or purchase and deliver the full two hundred thousand ties, but they do bind themselves to use every effort at their command to secure as many of the 200,000 ties as their time, money and efforts will permit them, and so long as they do this, said second party will not permit any other person or firm to purchase ties for them in the territory along or adjacent to the North Missouri Central Railway Company's line of road, for which the above ties are to be used for construction of said road. Said second party does, however, agree to purchase and receive from said first parties, the full 200,000 ties enumerated above, or any portion thereof, within the time limit stated above, if said first parties, with their best efforts, are able to secure that many ties within said limit, and at the price of fifty-five cents each tie.

"Specifications: All ties must be hewn from sound live and straight, white burr oak, or black walnut timber, free from wind shakes, rot, splits, and black or rotten knots. They must be hewn straight and smooth with the ends squared at right angles and must not vary more than one and one-half inches from eight feet in length.

"All the No. 1 ties must be of uniform thickness, which shall not be less than six inches nor more than seven inches and must be stripped of all bark. Sixty per cent of the No. 1 ties contracted for must have two hewn parallel faces, not less than eight inches wide at the narrowest part of each hewn face. Forty per cent of the the No. 1 ties may have two hewn faces less than eight inches, but not less than six inches at the narrowest part thereof, and in all other respects the ties must fill the foregoing specifications. Pole ties having a face from eight inches to six inches in width will be accepted under the same specifications as a tie with an eight inch face hewn from a large stick.

"The above are the specifications under this contract for No. 1 cross ties.

"For all No. 2 ties that may accumulate in the making of above ties (when they are sound, free from wind shakes, rot, splits, black or rotten knots and other defects) said second party will purchase said No. 2 ties at price of twenty-seven and one-half cents each.

"Delivery: All ties must be delivered at any point on and along the outer edge of the right of way of the North Missouri Central Railway Company as surveyed, at and between the towns of Mexico, Columbia and Jefferson City, Missouri; delivery to commence at once and continue as fast as said ties can be secured. All the ties to be piled 2x7 in piles as high as first parties desire.

"Each tie shall be subject to inspection by second party, or their authorized agent, when piled on right of way, beginning May 1, 1910, and on the first day of each month thereafter during the life of this contract.

"Terms of payment to be cash or by check on the 15th day of each month (first payment being May 15, 1910) for all ties delivered and inspected up to the 10th day of each month; said second party agreeing to inspect all ties that may be piled on said right of way under this contract up to 10th day of each month.

"Witness, our hands and seals in duplicate (each being an original), this 25th day of February, 1910."

Defendant's counsel contend that the contract pleaded in the petition of plaintiffs is void for want of mutuality, and for that reason the court nisi was right in sustaining the demurrer to the evidence. An answer to this proposition disposes of the case. If the contract is void, there can be no action for damages for the breach thereof. The case therefore falls within a very narrow compass.

I. It should be noted that the present action only involves the profits that plainti...