Malloy v. Egyptian Tie & Timber Company

• Decision Date: 29 January 1923
• Parties: D. G. MALLOY, Respondent, v. EGYPTIAN TIE & TIMBER COMPANY, Appellant
• Court: Missouri Court of Appeals

247 S.W. 469

212 Mo.App. 429

D. G. MALLOY, Respondent, v. EGYPTIAN TIE & TIMBER COMPANY, Appellant

Court of Appeals of Missouri, Springfield

January 29, 1923

Appeal from Circuit Court of Reynolds County.--Hon. E. M. Dearing Judge.

AFFIRMED.

Judgment affirmed.

Munger & Munger and W. T. Powers for appellants.

(1) The contract relied upon by plaintiff was, and is void for lack of mutuality. Hudson v. Browning, 264 Mo. 58; Campbell v. Handle Co., 117 Mo.App. 19; Holloway v. Mt. Grove Brewing Co., 209 S.W. 327; Reigart v Manufacturers Coal & Coke Co., 217 Mo. 142; Westheide v. Barker & Co. Paving Co., 251 F. 204; Iron & Rail Co. v. Railroad, 148 Mo.App. 173; Royal Brewing Co. v. Uncle Sam Oil Co., 226 S.W 656. (2) In arriving at the intention of the parties to a contract, evidence of the circumstances under which it was made is admissible, so that the court can put itself in the place of the parties at that time. Big Muddy Coal & Iron Co. v. St. Louis-Carterville Coal Co., 158 S.W. 420; Crawford v. Elliot, 78 Mo. 497, 85 U.S. (18 Wall) 307.

Garry H. Yount and C. P. Turley for Respondent.

(1) If a person agrees to buy and another person to sell all the supplies of a certain kind the former may need or that the latter may have to sell, there is no want of mutuality, and the contract is binding. Clark on Contract, page 171; Sheffield Furnace Company v. Hull, C. & Co., 14 So. 672; Wells v. Alexandre, 130 N.Y. 642; Lawson on Contracts, sec. 96. (2) Though the contract was unilateral in the first instance it became binding on defendant when plaintiff manufactured the ties, offered to deliver them and incurred that expense under the contract. Jones v. Durgin, 16 Mo.App. 370; Reynolds v. Walsh-Griffith Tie & Lbr. Co., 227 S.W. 438; Typewriter Co. v. Realty Co., 220 Mo. 523 and cases cited; Nicholson v. Cement Plaster Co., 145 Mo.App. 523; Wallace v. Workman, 187 Mo.App. 116-117, and cases cited; Clark on Contracts, page 169; 1 Parsons on Contracts (9 Ed.), page 488; 9 Cyc. 333. (3) Record proper must show the filing of bill of exceptions. Its failure to do so leaves nothing before the court for review but the record proper. Riley v. Baggs et al., 203 S.W. 650; Tracy v. Tracy et al., 201 S.W. 902, and cases cited. (4) Where the motion for the new trial was not included in the bill of exceptions as required, no matter of exceptions is open to review on appeal. State ex inf. v. Morgan, 268 Mo. 271, and cases cited; Anderson v. Grain Co., 208 S.W. 632, and cases cited. (5) Under the well-settled practice and rules of court, the evidence, the motion for new trial and arrest, . . . in fact all matters of exception not constituting part of the record proper, must be incorporated in the bill of exceptions, or else they would not be noticed by this court. State v. Griffin, 98 Mo. 674, and cases cited.

BRADLEY, J. Cox, P. J., and Farrington, J., concur.

OPINION

BRADLEY, J.

This is an action for damages for breach of contract relative to some ties. The cause was tried before the court and a jury, resulting in a verdict and judgment in favor of plaintiff for $ 1203.45. Failing to get a new trial on motion defendant appealed.

The contract relied on is in the form of a letter and is as follows: "Poplar Bluff, Mo., 1-6-1920. Mr. Green Malloy, Fremont, Missouri. Dear Sir: In confirmation of our agreement you will please enter our order for all your oak ties until further notice, price as follows: (Here follows description of ties and prices) Terms, sight draft, f. o. b. cars Fremont, Mo. Inspection by representative W. L. E. or C. & I. Ry., most probably Mr. Wm. Orrick. Yours truly, (Signed) Egyptian Tie and Timber Co. Per R. A. Milster." Under this contract plaintiff within two months cut and delivered at Fremont, ready for inspection and shipment, ties amounting to $ 1958.45. Defendant, it seems, had made arrangements with other parties to take the ties cut by plaintiff, and these parties failed to take said ties, and therupon defendant refused to take plaintiff's ties. Plaintiff, after waiting on defendant for quite a while to take said ties, sold them to another company and sued for his losses.

Defendant stands on two propositions in its brief. First, it contends that the contract sued on is unilateral and void, and that its requested instruction in the nature of a demurrer should have been given, and, second, that the court erred in excluding evidence explaining the circumstances or conditions under which the contract was made.

We are of the opinion that the contract in the beginning was unilateral, because under its terms no specified number of ties was mentioned. "Enter our order for all your oak ties until further notice" was not such an order or purchase as required plaintiff to furnish any ties; he was not bound to do anything under this indefinite contract. Hudson et al., v. Browning, 264 Mo. 58 174 S.W. 393; Reigart v. Manufacturers Coal & Coke Co., 217 Mo. 142, 117 S.W. 61; Campbell v. American Handle Company, 117 Mo.App. 19, 94 S.W. 815; Cal Hirsch & Sons Iron & Rail Co. v. Railroad, 148 Mo.App. 173, 127 S.W. 623; Royal Brewing Co. v. Uncle Sam Oil Co., 205 Mo.App. 616, 226 S.W. 656.] It appears here, however, that plaintiff cut and delivered at Fremont 1820 ties under this contract, and that defendant accepted one load before there was any intimation from defendant that it would not accept the ties. In fact it was about four months after the ties were cut and delivered at Fremont before defendant definitely announced that it would not accept the ties. During this time defendant's excuse was, as appears from the record, that it could not get an inspector. This is not a case like those cited supra, where the unbound party to a unilateral contract is suing for its breach before performance on his part, but here plaintiff, not bound in the beginning, performed to the extent of cutting 1820...