Reynolds v. Walsh-Griffith Tie & Lumber Co.

• Decision Date: 08 February 1921
• Docket Number: No. 16111.,16111.
• Parties: REYNOLDS v. WALSH-GRIFFITH TIE & LUMBER CO.
• Court: Missouri Court of Appeals

227 S.W. 438

REYNOLDS v. WALSH-GRIFFITH TIE & LUMBER CO.

No. 16111.

St. Louis Court of Appeals. Missouri.

February 8, 1921.

Appeal from St. Louis Circuit Court; John W. Calhoun, Judge.

"Not to be officially published."

Action by James A. G. Reynolds against the Walsh-Griffith Tie & Lumber Company. From judgment for plaintiff, defendant appeals. Affirmed.

Curlee & Hay, Cornwell, Hicks & Gary, and Abbott, Fauntleroy, Cullen & Edwards, all of St. Louis, for appellant.

C. A. Newton and C. S. Reber, both of St. Louis, for respondent.

BRUERE, C.

This suit was brought in the St. Louis circuit court to recover damages for the alleged breach by appellant of a contract, whereby appellant, as claimed by respondent, employed respondent, as its agent, to purchase for it certain railroad ties.

A trial was had in the circuit court of the city of St. Louis, which resulted in a judgment for the plaintiff (respondent herein). From said judgment the appellant duly appealed to this court.

The contract sued on is stated in the petition in substance as follows: That the appellant, being desirous of establishing an agency at the town of Ava, Mo., for the purposes of acquiring 6×8-inch railroad ties, entered into a contract with respondent whereby respondent agreed to purchase for appellant, at Ava, Mo., 6×8-inch railroad ties at prices to be named by appellant; that under the terms of said contract respondent agreed to advance the money for the purchase of said ties, and the appellant agreed to purchase said ties from respondent at the price paid by the respondent therefor, plus the sum of 4 cents per tie, ,which sum of 4 cents per tie was to be the respondent's compensation for purchasing said ties; that shortly after said contract was entered into respondent ascertained that he could not purchase 6×8-inch railroad ties without purchasing also 7×9inch railroad ties, inasmuch as the tie makers refused to sell the 6×8-inch ties unless the 7×9-inch ties were also purchased; that thereupon the contract was modified and the parties thereto agreed that the respondent should likewise purchase for appellant all the 7×9-inch ties necessary to enable him to purchase the 6×8-inch ties; that it was further agreed that respondent should purchase the 7×9-inch ties, at prices to be named by the appellant; and that respondent should receive a reasonable sum over and above the purchase price, advanced by him, as compensation for his services in purchasing said. 7×9-inch ties. For breach of the contract respondent in his petition states: That, pursuant to the terms of the modified contract, he purchased a large number of the 6×8-inch ties for appellant, and in so doing it became necessary for him to purchase 14,708 7×9-inch ties, for which he paid $7,483.50; that the appellant repurchased from respondent all the 6×8-inch ties according to the terms of said contract, but that appellant refused and failed to repurchase any of the 7×9-inch ties purchased for appellant; that respondent, after appellant refused to repurchase said 7×9inch ties, sold the same, at the market price therefor, for the sum of $5,064.72. Respondent prays judgment for the difference between the amount paid by plaintiff for the 7×9-inch ties and the amount received by him on the sale, to wit, the sum of $2,618.28, plus the sum of $588.32, compensation due him, together with interest.

The answer of appellant is a general denial.

In proof of his claim respondent introduced a letter addressed to respondent, written by appellant through his agent, Mr. Ezell. Said letter follows:

                           "Cabool, Missouri, 10-14-1913
                

"Mr. J. A. G. Reynolds—Dear Sir: Yours received in regard to loading. Mr. Reynolds, there was really more No. 2 ties Clan culls I loaded for you. Just starting in competition like that, they will, if not careful, get No. 2. ties. I pay just the same for 7×9 ties as Bash does and we will take care of them. I remain,

                    "Very truly yours, E. G. Ezell."
                

The Mr. Bash, referred to in the letter was the agent at Ava, Mo., of the Western Tie & Timber Company, a purchaser of railroad ties, and a competitor of the appellant.

The evidence offered by the respondent tends to sustain the allegations of the petition.

The appellant at the trial denied that it had authorized the respondent to purchase for it any 7—9-inch ties or that it had any contract with him for any 7×9-inch ties. The appellant introduced evidence showing that it had a contract with the respondent whereby it agreed to pay respondent 40 cents, f. o. b. cars, Ava, Mo., for No. 1 and 18 cents for No. 2 white oak ties, and 28½ cents for No. 1 and 14 cents for No. 2 red oak ties; that under said contract it did purchase from respondent a large number of 6×8-inch ties at the above prices; that the prices at which respondent purchased said ties were not fixed by appellant; and that no agreement was made with respondent whereby he was to receive a commission of 4 cents per tie purchased by him.

At the close of all the evidence the appellant offered, and the court refused a demurrer to the evidence.

Appellant complains of the action of the trial court in overruling said demurrer. It contends that the demurrer should have been sustained for the reason that the contract sued on is void for lack of mutuality; that, because the contract did not specify how many ties were to be delivered by the respondent, it was without consideration.

A contract that lacks mutuality is unenforceable while it is executory, but it becomes valid when executed. An acceptance of an article contracted for under a unilateral contract eliminates the want of mutuality and makes such contract enforceable. American & English Enc. of Law (2d Ed.) 115; Page on Contracts, vol. 3, § 1619; Jones v. Durgin, 16 Mo. App. loc. cit. 374; Nicholson v. Cement Plaster Co., 145 Mo. App. 523, 122 S. W. 773; Underwood Typewriter Co. v. Century Realty Co., 220 Mo. 522, 119 S. W. 400, 25 L. R. A. (N. S.) 1173; Wallace v....