Scriba v. Neely

• Decision Date: 31 March 1908
• Citation: 109 S.W. 845,130 Mo. App. 258
• Parties: SCRIBA v. NEELY.
• Court: Missouri Court of Appeals

109 S.W. 845

130 Mo. App. 258

SCRIBA v. NEELY.

St. Louis Court of Appeals. Missouri.

March 31, 1908.

1. COMPROMISE AND SETTLEMENT—CONSIDERATION—MUTUAL PROMISES—SUFFICIENCY.

Where an owner of land who had a contract with a broker to sell the same, stipulating for $200 commissions to the broker for making the sale, himself sold the land while the contract with the broker was in force, a subsequent oral contract between the parties by which the

broker agreed to cancel his former contract and the owner to pay him $100 in lieu thereof was based upon a sufficient consideration, though the first contract was not actually surrendered for cancellation, but the broker merely promised to cancel it, since in bilateral contracts the promise of each of the parties is a sufficient consideration for the promise of the other.

2. CONTRACTS—REQUISITES OF CONSIDERATION —SUFFICIENCY.

In order to support an action on a promise, the promise must have been made upon legal consideration moving from the promisee to the promisor, and there must have been either a benefit to the maker of the promise or the waiver of some legal right, loss, trouble, or inconvenience to, or a charge or obligation resting upon, the party to whom the promise was made.

3. SAME—"CONSIDERATION."

A "consideration" sufficient to support a contract means not so much that one party is profited as that the other abandoned some legal right in the present or limits his legal freedom of action in the future as an inducement for the act or promise for the first, and it does not matter whether the party accepting the consideration has any actual benefit thereby or not; but it is sufficient that he accepts it, and that the party giving it does thereby undertake some burden or lose something which in contemplation of law may be of value.

Appeal from Circuit Court, Lawrence County; F.C. Johnston, Judge.

Action by John H. Scriba against J. F. Neely. From a judgment for plaintiff, defendant appeals. Affirmed.

W. B. Skinner, for appellant. McPherson & Hilpert, for respondent.

BLAND, P.J.

Defendant signed and delivered to plaintiff the following agreement: "$6,500. Feb. 10, 1906. 130 acres, 68 acres bottom. By this I, Frank Neely, agree to pay to John Scriba in case he sells my farm or sends me a buyer the sum of two hundred dollars ($200), if he sells inside of one year. J.F. Neely." After the agreement was signed plaintiff wrote over it the date, "February 10, 1906," and swore the paper was signed on or about that date. Defendant testified it was made at a much earlier date, but was in force at the time defendant sold his land. Both parties testified that the sum for which plaintiff was authorized to sell defendant's land was $6,500. In September, 1906, defendant sold his farm to Joseph Schloman for $5,200. Schloman was not introduced to defendant by plaintiff, nor was plaintiff instrumental in making the sale of the farm. Schloman testified that he had known the farm was for sale for two years before he bought it, and had tried to buy it on a former occasion, but defendant asked more for it than he thought it was worth. Plaintiff testified he tried to sell the farm to several prospective buyers while it was in his hands for sale and before he learned defendant had sold it; that on learning it was sold he, in company with Richard White, went to defendant's place of residence and had a conversation with him in regard to his claim for compensation for his trouble and work in endeavoring to sell the farm, which culminated in the following agreement: That defendant would, in three days, pay plaintiff $100, plaintiff to cancel the contract, and give defendant an acquittance of any claim for compensation, or claim for commission, for any sale or effort to sell the farm. The suit is on this verbal contract. Defendant denied that he made the agreement to pay plaintiff $100. The contract whereby def...