Riddle v. Castner
| Decision Date | 18 January 1919 |
| Citation | 209 S.W. 127,202 Mo.App. 584 |
| Parties | GEORGE W. RIDDLE and R. E. DEES, co-partners as BERNIE LUMBER COMPANY, Appellants, v. GEORGE CASTNER, Respondent |
| Court | Missouri Court of Appeals |
Appeal from Stoddard County Circuit Court.--Hon. W. S. C. Walker Judge.
REVERSED AND REMANDED (with directions).
Judgment reversed and cause remanded.
Edmonds & Shaw for appellant.
J. L Fort for respondent.
Action by plaintiffs, who were engaged in buying and selling corn, for breach of contract. Plaintiffs recovered upon trial before the court and a jury. Motion for new trial was sustained, and plaintiffs appealed.
The petition charges that defendant on October 17, 1916, sold plaintiffs seven hundred and fifty bushels of corn at seventy-five cents per bushel, to be delivered at the option of plaintiffs from October 17, 1916, to March 1, 1917; charges that a demand had been made for the corn, and that defendant refused to deliver to plaintiffs' damage. The answer denied making the contract described in the petition, and then: "Further answering defendant avers that neither the plaintiff Geo. W. Riddle, or plaintiff D. E. Dees or plaintiff Bernice Lumber Company at any time accepted any part of the corn alleged in their petition to have been sold to them by defendant, nor did either of said parties ever actually receive any part of the corn alleged to have been sold to them by the defendant, nor did either of said parties ever give defendant anything in earnest to bind any bargain or sale of corn by the defendant to plaintiffs, nor did either of the plaintiffs ever pay the defendant anything for any corn sold by defendant to plaintiff, nor was there at any time any note or memorandum in writing made of the bargain or sale of any corn by defendant to plaintiffs and signed by the defendant and plaintiffs, or signed by the agents of defendant and plaintiffs lawfully authorized." October 17, 1916, defendant signed the following:
Defendant failed to deliver any corn, and plaintiffs brought this suit. Defendant contends: (1) That the contract was unilateral, and did not bind plaintiffs to accept the corn though he offered to deliver it; (2) that the memorandum of the contract was materially altered without his knowledge and consent, after he signed it, and was thereby rendered void.
The trial court assigned no reasons for granting a new trial, and hence its action should be sustained, if it can be, upon consideration of the whole record.
The memorandum of the contract signed by defendant was as appears, supra. The contention that there was no mutuality of obligation is based upon the construction of the language: "To be delivered at option of Bernie Lumber Company, from this date to March 1, 1917." Defendant urges that this language gave plaintiffs the option of accepting or not accepting the corn. The construction of a contract is controlled by the intention of the parties as appears from the language of the whole instrument. [La Crosse Lumber Company v. Schwartz, 163 Mo.App. 659, 147 S.W. 501; Good v. Erker, 170 Mo.App. 681, 153 S.W. 556.] Independent of anything outside the memorandum tending to show how the parties construed it, we think that the language itself is susceptible of but one reasonable construction, and that is that plaintiffs, so far as the contract or memorandum thereof as it was originally, was concerned, would be bound to accept if defendant offered to deliver, unless they interposed the Statute of Frauds. But this would go only to defeat enforcement of the mutual obligation and would not be a reason for saying there was no mutual obligation.
When the contract was entered into, and the memorandum drawn up, plaintiffs did not sign the memorandum, but did later.
The only question in determining as to the mutuality of obligation, is the construction of the option reference. If the option refers to the delivery and qualifies that term, then defendant's construction is correct, because if plaintiffs might accept or not at their own will then they were not bound to do anything, and mutuality of obligation would be lacking.
In considering the question of mutuality we do not consider that the Statute of Frauds when the contract was entered into would bar defendant from proceeding against plaintiffs should they refuse to accept, because a contract within the statute (Section 2784, R. S. 1909) is enforceable only against the party or parties who sign the memorandum, unless taken out of the statute on some other ground, and no distinction is made whether the section reads "party to be charged" or "parties to be charged." [Cunningham v. Williams, 43 Mo.App. 629; Elliott on Contracts, sec. 1319; Moore v. Thompson, 93 Mo.App. 336, 67 S.W. 680.] And while under a different section the following cases are analogous. [Mastin v. Grimes, 88 Mo. 478; Real Estate Company v. Spelbrink, 211 Mo. 671, 111 S.W. 480; Tracy v. Berridge, 180 Mo.App. 220, 167 S.W. 1176; Carter v. Timber Company, 184 Mo.App. 523, 170 S.W. 445.] In Elliott on Contracts, sec. 1319, supra, it is said: The plain meaning of the contract is that defendant sold and plaintiffs purchased seven hundred and fifty bushels of corn at seventy-five cents per bushel to be delivered between the date of the contract and March 1, 1917, and the only option was as to when it should be delivered. This construction is consistent with the attendant circumstances and surroundings. Plaintiffs were buying, selling and shipping corn, and were buying this corn from defendant with the view of selling it. One of the plaintiffs testified: We hold that the option referred only to the time of delivery and not to delivery. There was nothing in the contract as evidenced by the memorandum nor is there anything in the record tending to show that plaintiffs were merely taking an option on the corn, and that later they might take it or not as they might then decide.
Was the memorandum of the contract altered so as to render the contract void, or the...
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