Koerper v. Royal Investment Co.
| Decision Date | 17 November 1903 |
| Citation | 77 S.W. 307,102 Mo.App. 543 |
| Parties | KOERPER, Respondent, v. ROYAL INVESTMENT COMPANY, Appellant |
| Court | Missouri Court of Appeals |
Appeal from St. Louis City Circuit Court.--Hon-- --Judge.
AFFIRMED.
Judgment affirmed.
Adiel Sherwood and Joseph S. McIntyre for appellant.
(1) Defendant's permission to plaintiff to complete the work under the cancelled contracts of February 18, 1902, which plaintiff had no right to do but for defendant's waiver of its right to do the work at plaintiff's expense, was a valuable consideration to support the contract of June 23 1902. "The smallest spark of consideration is sufficient to support a contract deliberately made." Husband v Epling, 81 Ill. 172; Long v. Town, 42 Mo. 545; McKinley v. Watkins, 13 Ills. 140; Sanborn v French, 22 N.H. 248; Train v. Gold, 5 Pick. 384; Given v. Corse, 20 Mo.App. 132; 1 Parson's Cont. (7 Ed.), 472-3; Bowen v. Tipton, 1 Cent. Rep. 494; Glasscock v. Glasscock, 66 Mo. 627; 6 Am. and Eng. Enc. of Law (2 Ed.), 689; Vogel v. Meyer, 23 Mo.App. 427; Foulkner v. Gilbert, 77 N.W. 1072; Haskell v. Tukesbury, 92 Me. 551; Lindell v. Rokes, 60 Mo. 249. (2) It is sufficient to constitute a valuable consideration if some benefit accrues to the person who makes the promise, or if a loss or inconvenience is sustained by him to whom it is made although without benefit to the promisor. Willats v. Kenedy, 8 Bing. 5; Foster v. Fuller, 6 Mass. 58; Heldreth v. Pinkerton Acad., 30 N.H. 227; Warren v. Whitney, 24 Me. 561; Powell v. Brown, 3 Johns. 100; Lawrence v. Fox, 20 N.Y. 268; Carr v. Card, 34 Mo. 513; Story on Contracts, secs. 429, 431. (3) It is not necessary that there should be a benefit or advantage to the promisor; inconvenience, trouble or expense to the promisee will make the consideration valuable in law. Block v. Elliot, 1 Mo. 275; Halsa v. Halsa, 8 Mo. 303; Mullanphy v. Reily, 8 Mo. 675; Hudson v. Busby, 48 Mo. 35; Williams v. Janson, 75 Mo. 681; Houck v. Frisbee, 66 Mo.App. 16; Hartzell v. Saunders, 49 Mo. 433.
C. W. Rutledge for respondent.
(1) An agreement to pay money which is already due forms no consideration to support a new promise on the part of the other party. The contract of June 23 was without consideration. Brown v. Kirk, 20 Mo.App. 524; Harrison v. Murry Iron Works, 70 S.W. 261. (2) The jury shall find the facts, the court the law, and in a case where the jury have found the facts do not exist on which the court should declare the law, it is immaterial that the court has erroneously declared the law on such facts. May v. Crawford, 150 Mo. 504; Fout v. Giraldin, 64 Mo.App. 165; Lingenfelder v. Wainwright Brew. Co., 103 Mo. 578. (3) The refused instructions of defendant were not predicated on or supported by any evidence, and were properly refused on that account. Gorman v. Railroad, 113 Mo. 408; Moore v. Hawk, 57 Mo.App. 495. (4) Where the judgment is manifestly for the right party, it should be affirmed, regardless of errors occurring at the trial. Grocery Co. v. Grossman, 73 S.W. 292; Fairbanks v. Long, 91 Mo. 628.
This is an action to enforce a mechanic's lien for work done on the dwelling house No. 4623 Berlin avenue in St. Louis. What we are concerned with is a counterclaim set up by the defendant wherein it claims a forfeiture of five dollars a day for twenty-nine days, or one hundred and forty-five dollars. Plaintiff Koerper, who did business under the style of the American Stair Company, agreed to put in the stairways of said dwelling and some others then being constructed by the defendant. The contract was made by the following proposal, which was accepted by the defendant:
1 Main flight of stairs, quarter white oak;
1 rear flight of stairs, yellow pine.
1 attic flight of stairs, yellow pine. for the sum of two hundred and eight dollars, $ 208.00.
Koerper was slow about finishing the stairs--unreasonably slow the defendant asserts; and was several times notified by the latter to expedite the work on the stairs of this and the other houses. Those notices failed to hasten the work rapidly enough to satisfy the defendant; so on June 20, 1902, a letter was addressed to the plaintiff notifying him of the cancellation of his contracts. Said letter was as follows:
This letter was received on the day it was written and plaintiff thereupon called the president of the defendant company by telephone and protested against the attempted cancellation, as he had almost finished the work. Davis told Koerper to come to the former's office and they would talk the matter over. Koerper went and the result of the interview was the submission of the following proposal by the plaintiff and its acceptance by the defendant:
After the execution of that agreement the work still proceeded slowly, notwithstanding hurry notices from the defendant, and was not finished until the latter part of July; plaintiff says the 26th and defendant the 29th.
The counterclaim is based on the provision of the last contract for a forfeiture of five dollars a day unless the stairs were completed by July 1st. Koerper asserts that the sole cause of the delay prior to June 23d, when the contract for a forfeiture was signed, as well as subsequent to that date, was the failure of the defendant to pay him one-half the contract price when the stairs were done in the rough, as, by the original contract, the defendant was bound to do so; that on account of not being paid he was unable to get material or hands to finish the work. He further contends that the sole consideration for his signing the contract providing for a forfeiture, was the agreement of the defendant to pay what was due him on account.
The circuit court held the provision for a forfeiture of five dollars a day should be treated as penalty instead of liquidated damages, and that in no event was the defendant entitled to recover more than nominal damages on its counterclaim, as it made no proof of actual damages. The defendant insists that this ruling was erroneous; and that is the main proposition discussed by its counsel. But for the question of penalty or agreed damages to become material, it is indispensable that the contract providing for forfeiture should be supported by a consideration; otherwise whatever its meaning is, it is a nude pact.
One theory of consideration presented by the defendant is that in making the second contract it waived any claim for loss theretofore entailed by plaintiff's failure to complete the stairs in a reasonable time. Suffice to say as to this proposition, that there is nothing in the contract of June 23d referring to a claim by defendant for damages for previous delay or undertaking to waive such a claim.
Another proposition relied on in this connection is that if the plaintiff had broken his agreement prior to June 23d, by failing to finish the stairs in a reasonable time and remained in default after repeated demands for performance, those facts gave the defendant a right to cancel the original contract, as it undertook to do on June 23d; and that the original contract being then at an end, the parties made a new one, giving the plaintiff until July first to finish the stairs and binding defendant to pay him the price originally stipulated.
The first agreement contains no clause providing for its annulment or rescission by one party for the other's breach. The defendant's right to rescind it for non-performance by plaintiff depends therefore on the rules of contract law which define the limits of the right to rescind for a breach.
No time having been fixed in the first contract for the completion of the work, plaintiff was bound to...
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