Schonwald v. F. Burkart Mfg. Co.

• Citation: 202 S.W.2d 7,356 Mo. 435
• Decision Date: 21 April 1947
• Docket Number: 39708
• Parties: Alexander Schonwald v. F. Burkart Manufacturing Company, a Corporation, Appellant
• Court: Missouri Supreme Court

202 S.W.2d 7

356 Mo. 435

Alexander Schonwald v. F. Burkart Manufacturing Company, a Corporation, Appellant

No. 39708

Supreme Court of Missouri

April 21, 1947

Rehearing Denied May 12, 1947.

Appeal from Circuit Court of City of St. Louis; Hon. Robert L Aronson, Judge.

Affirmed.

Rassieur, Kammerer, Rassieur & Erker and Samuel H. Liberman for appellant.

(1) Plaintiff was not entitled to recover unless the idea and process alleged to have been disclosed by him to defendant were originated by plaintiff and were new and novel. Proof of origination was essential. Brunner v. Stix, Baer & Fuller Co., 352 Mo. 1225, 181 S.W.2d 643; Moore v. Ford Motor Co., 43 F.2d 685; Lueddecke v. Chevrolet Motor Co., 70 F.2d 345; Commissioner v. Affiliated Enterprises, 123 F.2d 665; Yadkoe v. Fields, 151 P.2d 906; Masline v. New York, N.H. & H.R. Co., 95 Conn. 702; Liggett & Myers Tobacco Co. v. Meyer, 101 Ind.App. 420, 194 N.E. 206; Haskins v. Ryan, 71 N.J.Eq. 575, 64 A. 436; Thomas v. Reynolds Tobacco Co., 350 Pa. 262, 38 A.2d 61, 157 A.L.R. 246; How. J. Ryan v. Century Brewing Assn., 185 Wash. 600, 55 P.2d 1053; Logan, Legal Protection of Ideas, 4 Mo. L.R. 239; 72 U.S.L.R. 439. (2) Since the scintilla of evidence rule does not obtain in Missouri, substantial evidence was necessary to support a finding of origination. Hardwick v. Kansas City Gas Co., 352 Mo. 986, 180 S.W.2d 670; Wallingford v. Terminal Railroad Assn., 337 Mo. 1147, 88 S.W.2d 361; Kresge Co. v. Unemployment Comp. Comm., 349 Mo. 590, 162 S.W.2d 838; Wolpers v. Unemployment Comp. Comm., 353 Mo. 1067, 186 S.W.2d 440. (3) Plaintiff was bound by the uncontradicted testimony of witnesses offered by plaintiff. Platt v. Platt, 343 Mo. 745, 123 S.W.2d 54; Draper v. L. & N.R. Co., 348 Mo. 886, 156 S.W.2d 626; Mississippi Valley Trust Co. v. Francis, 186 S.W.2d 39. (4) Since proof of origination was essential, instructions directing a verdict for plaintiff without requiring a finding of origination were erroneous. Authorities under (1), supra; State ex rel. v. Shain, 344 Mo. 57, 128 S.W.2d 1080; Luft v. Strobel, 322 Mo. 955, 19 S.W.2d 721; State ex rel. Funsten Co. v. Becker, 318 Mo. 516, 1 S.W.2d 103; State ex rel. Long v. Ellison, 272 Mo. 571, 199 S.W. 984; State ex rel. v. Trimble, 318 Mo. 173, 300 S.W. 812; Hall v. Coal and Coke Co., 260 Mo. 351, 168 S.W. 927; Macklin v. Fogel Co., 326 Mo. 38, 31 S.W.2d 14; Wojtylak v. Coal Co., 188 Mo. 260, 87 S.W. 506; 1 Raymond on Missouri Instructions, p. 67, sec. 73. (5) The alleged original contract and the alleged modified contract were unenforceable because of lack of mutuality and because of indefiniteness and uncertainty. A contract which binds one party to sell but does not bind the other party to buy, or which binds one party to pay for services but does not bind the other to perform the services, is lacking in mutuality and is therefore void. Gillen v. Bayfield, 329 Mo. 681, 46 S.W.2d 571; Hudson v. Browning, 264 Mo 58, 174 S.W. 393; Clarkson v. Standard Brass Mfg. Co., 237 Mo.App. 1018, 170 S.W.2d 407; Campbell v. American Handle Co., 117 Mo.App. 19, 94 S.W. 815; Hirsch v. Paragould R. Co., 148 Mo.App. 173, 127 S.W. 623; Quigley v. King, 182 Mo.App. 196, 168 S.W. 285; Terre Haute Brewing Co. v. Dugan, 102 F.2d 425; 13 C.J., Contracts, sec. 191, p. 339. (6) All the essential terms of a contract must be certain or capable of being rendered certain. Bay v. Bedwell, 21 S.W.2d 203; Jesse v. Rolaff, 74 S.W.2d 890; Jensen v. Turner Bros., 16 S.W.2d 742. (7) A mere part performance of a contract which is not binding upon the parties for want of mutuality does not make the contract binding in so far as it remains executory. Solace v. T.J. Moss Tie Co., 142 S.W.2d 1079; Clarkson v. Standard Brass Mfg. Co., 237 Mo.App. 1018, 170 S.W.2d 407. (8) A contract of employment which does not contain any provisions as to its duration is terminable at will. Paisley v. Lucas, 346 Mo. 827, 143 S.W.2d 262; Staroske v. Pulitzer Publishing Co., 235 Mo. 67, 138 S.W. 36; Clarkson v. Standard Brass Mfg. Co., 237 Mo.App. 1018, 170 S.W.2d 407; Davis v. Pioneer Ins. Co., 181 Mo.App. 353, 172 S.W. 67; 2 C.J.S., Agency, p. 1148, sec. 68; 17 C.J.S., Contracts, p. 887, sec 398; 13 C.J., Contracts, p. 605, sec. 630. (9) In an action for breach of an express contract, plaintiff must recover upon the contract and the breach thereof as pleaded. Plaintiff cannot sue upon one contract and recover on another. Cole v. Armour, 154 Mo. 333, 55 S.W. 476, 481; Jones v. Hill, 18 S.W.2d 382; Deisel-Wemmer-Gilbert Corp. v. Chalmer Tobacco Co., 231 Mo.App. 631, 104 S.W.2d 1029; Fay v. Missouri Power & Light Co., 33 S.W.2d 1056; Collins v. Peoples Bank of Salisbury, 33 S.W.2d 139; Hoffman v. Mastin, 54 S.W.2d 436. (10) An instruction cannot allow recovery upon a contract not pleaded. Kopp v. Moffett, 237 Mo.App. 325, 167 S.W.2d 87; Fuldner v. Cook, 127 S.W.2d 726. (11) Instructions directing a verdict must require findings of all the essential elements of the contract pleaded. Authorities under (2) supra. (12) Instruction 2 given at the request of plaintiff permitted a recovery under an implied contract although plaintiff pleaded and attempted to prove on express contract, and permitted the jury to pass upon a question of law. Foster v. Aetna Life Ins. Co., 352 Mo. 166, 176 S.W.2d 482; Macklin v. Fogel Const. Co., 326 Mo. 38, 31 S.W.2d 14; Koontz v. St. Louis Car Co., 203 Mo. 227, 101 S.W. 49; Lewis v. Zagata, 350 Mo. 446, 166 S.W.2d 541; Gillioz v. Highway Commission, 348 Mo. 211, 153 S.W.2d 18; Thompson v. St. Joseph Light & Power Co., 345 Mo. 31, 131 S.W.2d 574. (13) Instructions should not contradict each other nor be in conflict, nor should they be couched in prejudicial terms. Scott v. First Natl. Bank, 343 Mo. 77, 119 S.W.2d 929; Sloan v. Polar Wave Ice & Fuel Co., 323 Mo. 363, 19 S.W.2d 476; Smith v. Ohio Millers Mutual Life Ins. Co., 325 Mo. 51, 26 S.W.2d 962. (14) Under Section 105, New Code of Civil Procedure, all instructions given to the jury must be in writing. The court erred in orally advising and instructing one of the jurors that "nothing is to go on after this, and this year and next year are out." Sec. 105, New Code of Civil Procedure; Fenton v. Hart, 73 S.W.2d 1034; Peck v. Springfield Tract. Co., 131 Mo.App. 134, 110 S.W. 659; Belk v. Stewart, 160 Mo.App. 706, 142 S.W. 485. (15) Evidence offered by defendant that it had used pyroxylin and other adhesives in the lamination of material for uses other than shoe soles was relevant and material to the issues and its exclusion constituted prejudicial error. Russell v. Union Electric Co., 191 S.W.2d 278; Luechtefeld v. Marglous, 151 S.W.2d 710.

Wilbur B. Jones, Peter H. Husch , and Dave L. Cornfeld for respondent; Salkey & Jones of counsel.

(1) This is a suit for breach of contract, governed by the well established rule that the disclosure of an idea and process which is new and useful to the one to whom it is disclosed may be protected by contract. Brunner v. Stix, Baer & Fuller Co., 352 Mo. 1225, 181 S.W.2d 643; Elfenbein v. Luckenbach Terminals, 111 N.J.L. 67, 166 A. 91; Keller v. American Chain Co., 255 N.Y. 94, 174 N.E 74; Sansom v. Provident Trust Co., 103 Pa.Super. 447, 157 A. 34; American Mint Corp. v. Ex-Lax, Inc., 263 A.D. 89, 31 N.Y.S. (2d) 708; Healey v. R.H. Macy & Co., Inc., 277 N.Y. 681, 14 N.E.2d 388; Green v. Brooks, 81 Cal. 328, 22 P. 849; Shapiro v. Press Publishing Co., 255 N.Y.S. 899, 235 A.D. 698; Reed v. Golden, 28 Kans. 632, 42 Am. Rep. 180; Parsons v. Robinson, 15 N.Y.S. 138. (2) The essential element in cases involving a suit on a contract to compensate for disclosure of an idea, information or process is not that the idea, information or process must be unique or original with the plaintiff or have been first discovered or invented by him, but rather that they must contain some novelty in the sense that they be previously unknown to the person to whom they are disclosed, and that they be of some value or at least thought to be of some value to such person. Brunner v. Stix, Baer & Fuller Co., 352 Mo. 1225, 181 S.W.2d 643; Haskins v. Ryan, 75 N.J.Eq. 330, 78 A. 566; Authorities cited under (1) above. (3) The adequacy of a consideration considered by the party at the time of contracting as the equivalent of the promise will not be inquired into. Here defendant received exactly what it bargained for, namely, an idea and process for the manufacture of non-rationed, laminated duck soles for shoes which was new and useful to defendant. Brunner v. Stix, Baer & Fuller Co., 352 Mo. 1225, 181 S.W.2d 643; 12 Am. Jur., sec. 122, p. 614; 1 Williston on Contracts, sec. 115; 1 Restatement of Contracts, sec. 81. (4) Even if the idea itself is common, if a specific method is furnished for the use and application of the common idea, it will be good consideration for a contract of this kind. It is well established that even the furnishing of mere information which is useful to the one to whom it is furnished is valuable consideration for a binding promise made in exchange therefor. Brunner v. Stix, Baer & Fuller Co., 352 Mo. 1225, 181 S.W.2d 643; Masline v. N.Y.N.H. & H.R. Co., 95 Conn. 702, 112 A. 639; Authorities cited under (1) above. (5) The idea and process involved here were akin to if not actually a trade secret and their disclosure was good consideration for a binding contract. The law is well established that even if the idea and process was not a strict trade secret in the sense of being an original discovery no one had ever used before, but merely the combination and adaptation of old principles to new purposes, in a way successfully to accomplish them, plaintiff is nonetheless entitled to recover. Germo Manufacturing Co. v. Combs, 209 Mo.App. 651; Sandlin v. Johnson, 141 F.2d 660; Saco-Lowell Shops v. Reynolds, 141 F.2d 587. (...