Moore v. Thompson

• Decision Date: 18 March 1902
• Citation: 93 Mo. App. 336,67 S.W. 680
• Parties: MOORE v. THOMPSON.
• Court: Missouri Court of Appeals

67 S.W. 680

93 Mo. A. 336

MOORE v. THOMPSON.

Court of Appeals of St. Louis, Missouri.

March 18, 1902.

CONTRACT — ASSIGNABILITY — ASSENT OF LESSEE — EVIDENCE — STATUTE OF FRAUDS — CORPORATIONS — CREDITORS.

1. A contract whereby the owners of a department store let certain space therein to plaintiff for a shoe department, agreeing to furnish attendant services, etc., was not assignable without the assent of both parties, because one of mutual confidence, and for the performance of valuable services each for the other.

2. On an issue whether plaintiff assented to the assignment of the contract to a corporation so as to bind the latter, it appeared that no express assent was ever given, and that, when asked to assent, he refused to do so at the time, but took the matter under advisement, and that his attorney wrote the original lessors, stating that he would hold them liable unless some satisfactory arrangements were made. Afterwards the corporation wrote plaintiff that it had assumed the lease, and would carry it out in every respect. Plaintiff continued in possession thereafter, both he and the corporation carrying out the contract. Held sufficient to show a substitution of the corporation in place of the original lessors.

3. The corporation's written agreement to perform the conditions of the contract was sufficient to take the case out of the statute of frauds (Rev. St. 1899, § 3418) where acted on by plaintiff, though he did not assent in writing to the assignment.

4. The corporation afterwards deeded the entire establishment to a trustee for creditors, and plaintiff was forced to quit the premises, and dispose of his goods, etc., at a loss, and to lose the value of his unexpired lease. Held that, though plaintiff's damages were unliquidated, he was nevertheless a creditor of the corporation, and entitled to recover against its trustee.

Appeal from St. Louis circuit court; Walter B. Douglas, Judge.

Action for breach of contract by William T. Moore against William B. Thompson, trustee of the Ryan-Clarkson Dry Goods Company. Judgment for plaintiff, and defendant appeals. Affirmed.

R. E. Rombauer and Ford Thompson, for appellant. Given Campbell, for respondent.

BLAND, P. J.

A commercial firm in the city of St. Louis known as Ryan & Cannon, and composed of M. I. Ryan, J. M. Cannon, and George Murphy, on July 26, 1898, made the following contract with the plaintiff: "We, the undersigned, Ryan & Cannon, agree to rent to W. T. Moore, for shoe department, space in 510-12 Washington avenue, for a period of (10) years, beginning January 1, 1898. The space to be 58 feet 5 inches in length by 8 feet 9 inches in width. Shelving to run along west wall 58 feet 5 inches to west windows. Rent to be twenty-four hundred ($2,400) per year, or forty-six dollars and sixteen cents ($46.16) per week, until sales of the department reach ($50,000) per year, at which time said W. T. Moore agrees to pay Ryan & Cannon 7½ per cent. on all sales. Settlements to be made weekly for rent, and all freight and express charges paid by Ryan & Cannon in cash for W. T. Moore to be paid Thursday of each week. Advertising to be deducted the first week of each month. Advertising to be figured on the actual number of lines used and ten per cent. of the heading. Ryan & Cannon are to charge said W. T. Moore for advertising at the same rate as the St. Louis Globe-Democrat, St. Louis Republic, St. Louis Chronicle St. Louis Post-Dispatch, St. Louis Star Newspaper Companies charge Ryan & Cannon. Said Ryan & Cannon agree that said W. T. Moore may use for show windows the whole west window on Washington avenue, now divided into three parts, said window to be dressed by W. T. Moore. Ryan & Cannon further agree to set aside in one of the upper floors of 510-12 Washington avenue enough space for duplicate and empty cases which the shoe department will need; also agree to furnish three (3) cash carrier baskets. Ryan & Cannon further agree to have cases in duplicate room the same day goods are received. They also agree to furnish all sales checks, exchange checks, and address blanks, which are necessary to the business according to Ryan & Cannon's system. Ryan & Cannon further agree to furnish janitor, and have said janitor to dust carpets every night; also night watchman. They also agree to display no less than (4) signs for each floor, directing customers to the shoe department. Ryan & Cannon also agree to be responsible for all packages after they leave the salesman. Ryan & Cannon further agree to stand good and pay said W. T. Moore for any shoes that said Ryan & Cannon should charge their customers, and vice versa. Fixtures to be put up by W. T. Moore at his expense. This contract to commence Sept. 5, 1898, at which time Ryan & Cannon agree to have space for shoe department clear. All purchases for this department must be made in the name and at the risk of W. T. Moore. Ryan & Cannon will not be responsible for any of said W. T. Moore's purchases or contracts with other parties. Ryan & Cannon agree to furnish cashier, bundle wrappers, wrapping paper and twine, heat, and elevator service; also agree to keep shoe department as well lighted as space is at present. W. T. Moore to handle all leggings and over-gaiters. Catalogue space occupied in catalogue to be paid pro rata of cost and mailing; charge expressage on shoes prepaid on country orders pro rata of amount of order. All advertising must be submitted to Ryan & Cannon for approval before being inserted in paper, and will be attended to by advertising manager. When parcels of shoes only are purchased, and are required to be sent to the depot, the charge of ten cents made by the package room employés at the railroad station will be paid by W. T. Moore. Our regular deliveries being very ample, all packages to be sent `special' must first have the O. K. of our superintendent before being promised to the customer. The department is to be known as the Ryan & Cannon Shoe Dept., and shoes will be so stamped; likewise the cartoons. The help employed by this department must at all times be satisfactory to Ryan & Cannon, and in cases where the taking back of goods or allowances for any cause are referred to Ryan & Cannon, Ryan & Cannon must have the right of final decision." Plaintiff went into possession of the rented space in the store of Ryan & Cannon, and paid the rent, and all the terms of the contract were carried out by both parties thereto until about the 16th of November, 1898, when Cannon sold his interest in the firm to Murphy. This partnership continued until January 14, 1899, on which date the partnership business and assets were sold to the Ryan-Clarkson Dry Goods Company, a corporation. The corporation took possession of the premises formerly occupied by Ryan & Cannon, and continued the business until December 16, 1899, when the corporation executed a deed of trust to W. B. Thompson for the benefit of creditors. The deed of trust, after specifying numerous creditors, contained the following clause: "This conveyance is intended to be for the benefit of every creditor of the said party of the first part herein, and, if any such creditor is not mentioned in this instrument, such omission occurred by oversight, it being the intent and purpose of this conveyance that all of the creditors of said party of the first part shall share in equal proportions in the assets of said corporation when the same are distributed according to the provisions of this instrument." Thompson, the trustee, on December 16, 1899, took possession of the property, and a short time afterwards handed to plaintiff the following instrument for his signature, to wit: "Whereas, W. T. Moore is in possession of a certain part of premises known as 510-12 Washington avenue, in the city of St. Louis, and heretofore occupied by the Ryan-Clarkson Dry Goods Company, and has been paying to the Ryan-Clarkson D. G. Co. for such space at the rate of $46.16 per week, including light, delivery, and cashier's service; whereas, he desires to continue in possession of said space, and secure the cashier's, delivery, and heat service during the occupancy of the premises by W. T. Thompson, trustee for the creditors of the Ryan-Clarkson D. G. Co.; whereas, the said trustee is willing to permit the said service without binding him, the said trustee, or the assets of said Ryan-Clarkson D. G. Co., by reason of the continuance of said service: Now, therefore, the undersigned, William T. Moore, does hereby agree, without prejudice to any of the rights of the creditors of the Ryan-Clarkson D. G. Co., or without any personal responsibility on the part of the trustee, to permit the said trustee to continue the said service until such time as said trustee shall terminate the said service. And said Moore does hereby agree that any payment made to him of the daily receipts of said service shall in no manner bind the said trustee, or shall in no manner prejudice any of the rights of the said creditors of the Ryan-Clarkson D. G. Co. by reason of such continued service. And it is further agreed that a settlement of such service shall be made daily, and the receipts signed by the said Moore. In witness whereof said W T. Moore has hereunto set his hand this 19th day of December, 1899." The plaintiff refused to...