Sebastian County Coal & Mining Company v. Mayer

• Decision Date: 30 July 1925
• Docket Number: 24017
• Citation: 274 S.W. 770,310 Mo. 104
• Parties: SEBASTIAN COUNTY COAL & MINING COMPANY, Appellant, v. JOHN MAYER and MAYER COAL COMPANY
• Court: Missouri Supreme Court

274 S.W. 770

310 Mo. 104

SEBASTIAN COUNTY COAL & MINING COMPANY, Appellant, v. JOHN MAYER and MAYER COAL COMPANY

No. 24017

Supreme Court of Missouri

July 30, 1925

Appeal from Jackson Circuit Court; Hon. Thomas J. Seehorn Judge.

Reversed and remanded (with directions).

Cyrus Crane, O. E. Swan and John H. Lathrop for appellant.

(1) The letters offered in evidence constitute a sufficient note or memorandum and an agreement by John Mayer and the Mayer Coal Company to be responsible for the performance of the original lease. Young Men's Christian Assn. v. Dubach, 82 Mo. 475; Lesley Brothers v. Fruit Co., 162 Mo.App 195; Smith v. Hainline, 253 S.W. 1049; Meramec Cement Co. v. Kreis, 261 Mo. 160; Logan v Waddle, 252 S.W. 469. (a) There was ample consideration for the agreement. Typewriter Co. v. Realty, 220 Mo. 522. (b) The acceptance was clear. Allen v. Chouteau, 102 Mo. 309; Northrup v. Colter, 150 Mo.App. 639; Embry v. Dry Goods Co., 127 Mo.App. 383. (2) There was complete performance on the part of the plaintiff company which bars the defendants from attempting to rely on the Statute of Frauds. Phelps v. McCaw, 210 Mo.App. 514.

E. L. Burton and Goodwin Creason for respondents.

(1) There was no writing signed by either of the respondents or any other person by them thereto lawfully authorized, whereby they, or either of them, agreed to answer to the plaintiff for the debt, default or miscarriage of Fidelity Fuel Company. Therefore the Statute of Frauds and decisions of appellate courts of this State bar any recovery by plaintiff from respondents for any debt of the Fidelity Fuel Company owing to the plaintiff. Sec. 2169, R. S. 1919; Miller v. Baking Co., 53 Mo.App. 433; Hoeberle v. O'Day, 61 Mo.App. 393; Mueller v. Woodson, 198 S.W. 1315; Dierks Lumber Co. v. Duncan Lumber Co., 234 S.W. 364. (2) There was no contract written or oral whereby respondents agreed to guarantee that the Fidelity Fuel Company would pay the royalties under its lease agreement with the plaintiff. The most strained construction of the letters in evidence, and relied upon by plaintiff for its cause of action, is that appellant made a written proposal to respondents, which, to bind respondents, must be accepted in writing without modification. This was not done. Authorities above. (3) The letters relied upon by plaintiff for its claim against the respondents are signed, one by John Mayer and the other by Mayer Coal Company, John Mayer. Taken and construed together with the lease by Fidelity Fuel Company to the men of Fidelity and the sales contract, both referred to in these letters, show conclusively that they were written for and on behalf of Fidelity Fuel Company, and not for or on behalf of John Mayer or Mayer Coal Company. (4) In order to bind the makers of a proposition and conclude the contract, the acceptance by the other party must be unconditional, unqualified, without addition or variation. 1 Parsons on Contracts, 404-407; Patton v. Rucker, 29 Tex. 408; Gulfport Cotton Oil Co. v. Reneau, 94 Miss. 904; Smith on Law of Fraud, sec. 319; Miller v. Baking Co., 53 Mo.App. 433; Arky v. Comm. Co., 185 Mo.App. 250. (5) Assuming for argument's sake (a fact which we deny) that respondents contracted to pay the plaintiff the amount of the royalties owing to plaintiff by Fidelity Fuel Company, yet plaintiff cannot recover from respondents because it has sued and procured a judgment against said Fidelity Fuel Company for the same debt. Hoeberle v. O'Day, 61 Mo.App. 390; Mueller v. Woodson, 198 S.W. 1134; Meegan v. Surety Co., 193 S.W. 899; Dierks Lumber Co. v. Duncan Shingle Co., 234 S.W. 362.

Graves, J. All concur, except Atwood, J., not sitting.

OPINION

GRAVES

The opinion in this case should be read in connection with the opinion in Sebastian County Coal & Mining Company v. Fidelity Fuel Company, Appellant, infra page 158. Both appeals here arise out of the same record and trial nisi. In fact one appeal is from one portion of a single judgment nisi, and the other appeal is from another portion of such judgment. The facts involved as to the two appeals are so different upon vital issues, that two separate opinions are required. In the appeal of the Fidelity Fuel Company, we have outlined the general and common facts. So to that opinion we (for brevity) refer. In the instant case, being our Number 24017, an appeal by the plaintiff is from that portion of the judgment of the circuit court by which it was adjudged that neither defendant John Mayer, nor defendant Mayer Coal Company, was liable for the defaults of the Fidelity Fuel Company, in relation to its lease from the plaintiff, Sebastian County Coal & Mining Company. It is sought to hold John Mayer and Mayer Coal Company, as guarantors for the Fidelity Fuel Company under the lease fully discussed in the Fidelity Fuel Company appeal. In this case the defendants Mayer and Mayer Coal Company, by answer plead the original lease, and subsequent agreements. In the other opinion we spoke of a sub-lease by Fidelity Fuel Company to its miners at Mine No. 10, which was assented to by the plaintiff. In the petition therein set out it is claimed that the assent to such sub-lease was given on the understanding that John Mayer and the Mayer Coal Company would guarantee to plaintiff the full performance of the original lease, and the subsequent agreement reducing the minimum quarterly rents, or royalties. Learned counsel for appellant in this appeal, in their statement say:

"This is an action to recover rentals (sometimes called minimum royalties) and taxes due the plaintiff company under the terms of a written lease originally made between the plaintiff's predecessors in interest and defendant, the Fidelity Fuel Company. The defendants, John Mayer and Mayer Coal Company, were joined because, being interested in the Fidelity Fuel Company, they secured the plaintiff's written consent (as required by the lease) to an assignment of the lease to a certain organization of miners who were working for them. This assignment was only consented to and granted by the plaintiff company upon the understanding that John Mayer and the Mayer Coal Company should be responsible to the plaintiff for the faithful performance of the lease, which understanding we contend was covered by certain correspondence passing between the parties and offered in evidence.

"Under the pleadings as they stood at the time the case was tried and the evidence, the plaintiff was entitled to and did have judgment against the Fidelity Fuel Company. John Mayer and the Mayer Coal Company contended that any agreement on their part to pay the rentals and taxes was within the Statute of Frauds and that there was no written note or memorandum such as was required to satisfy the statute. The trial court entered judgment in favor of John Mayer and the Mayer Coal Company, and it is from this judgment that the plaintiff has appealed. The Fidelity Fuel Company appealed from the judgment against it."

In the answer of John Mayer, it is admitted that he had acquired a majority of the stock of the Fidelity Fuel Company, and his answer was adopted by the Mayer Coal Company. This was before the letters upon which plaintiff relies to hold John Mayer and Mayer Coal Company. The oral testimony sheds no light upon the alleged guaranty. If there was such, it must appear from the written correspondence. We shall set out the letters in regular order. The first letter is of date August 9, 1915, and appears to be in confirmance of a talk had with Mr. A. W. Lefeber, who had control of the coal matters (so far as the lease was concerned) of the Sebastian County Coal & Mining Company. This letter reads:

"Kansas City, Mo. August 9th, 1915.

"Leasing of Fidelity mine of Fidelity, Ark.

"A. W. Lefeber, V. P. & T. M.,

"Midland Valley Ry. Co.,

"Muskogee, Oklahoma.

"Dear Sir:

"Confirming verbal conversation with you at Muskogee, wish to say that we desired to lease the above property to the men working for us at Fidelity -- the lease to be under our supervision, protecting in every way the interests of the Cherokee Construction Company and the Midland Valley Railroad Company.

"The following Tuesday I met your Mr. Gallager and showed him a copy of the lease that we had prepared, which met the approval of the man, and to which lease he found no objection.

"I promised to confirm my conversation with you by letter, but was detained at the mines working out the details of the arrangements, hence delay.

"Trusting this meets your approval, I am,

"John Mayer."

To this letter there was a reply which reads:

"Muskogee, Oklahoma, August 12, 1915.

File 312-7

"Mr. John Mayer,

"323 Sheidley Bldg.

"Kansas City, Missouri.

"Dear Sir:

"I acknowledge receipt of yours of August 9, in reference to you or the Mayer Coal Company making a working contract with the Miners at your Fidelity Mine, and asking our approval thereof, all as provided for in the lease between Fidelity Fuel Company and Cherokee Construction Company of date January 1, 1909.

"In reply thereto I wish to say it is agreeable to the Sebastian County Coal & Mining Company and the Midland Valley Railroad Company for you to make such working contract as mentioned, you and the Mayer Coal Company being responsible to the Sebastian County Coal & Mining Company and the Midland Valley Railroad Company for the faithful performance of the original contract above referred to; but we would like to ask, as personally stated, that copy of such contract be sent to us to be attached to original lease. If this is not the understanding, please advise. Not hearing from you, this correspondence will be attached to and as a part of contract first above referred to.

"Yours truly.

"A. W. Lefeber."

To this letter was sent the following...