Shofler v. Jordan, 7384

• Citation: 284 S.W.2d 612
• Decision Date: 06 December 1955
• Docket Number: No. 7384,7384
• Parties: John L. SHOFLER, Plaintiff-Respondent, v. George JORDAN, Defendant-Appellant.
• Court: Court of Appeal of Missouri (US)

Page 612

284 S.W.2d 612

John L. SHOFLER, Plaintiff-Respondent, v. George JORDAN, Defendant-Appellant.

No. 7384.

Springfield Court of Appeals, Missouri.

Dec. 6, 1955.

Walker, Daniel, Clampett & Rittershouse, Springfield, for defendant-appellant.

William C. Myers, Jr., Webb City, for plaintiff-respondent.

STONE, Judge.

Defendant appeals from a judgment of $1,500 entered upon a jury verdict following trial of this suit on an alleged express oral contract. In determining the meritorious question on appeal, i. e., whether defendant's motion for a directed verdict at the close of all of the evidence should have been sustained, we consider the evidence in the light most favorable to plaintiff, giving to him the benefit of all favorable inferences arising from the evidence and disregarding defendant's evidence except insofar as it may aid plaintiff's case. Wapelhorst v. Lindner, Mo., 269 S.W.2d 865, 870(6); Moore v. Middlewest Freightways, Mo., 266 S.W.2d 578, 579(1); Colley v. Cox, Mo.App., 266 S.W.2d 778, 780(1).

The express oral contract alleged in plaintiff's amended petition was 'that if plaintiff would ride a sorrel mare purportedly belonging to defendant, that defendant would pay all damages or losses sustained by plaintiff in the event that he was injured from the riding of said sorrel mare.' The mare was being trained by one Lewis F. Leer at his place near Log City in Jasper County, Missouri. According to plaintiff, Leer had stated (although not in defendant's presence) that defendant 'had bought this mare from a Mr. Koelke * up near Lockwood.' All of the other evidence was to the effect that Koelke took the mare to Leer's place, arranged for Leer to train her, furnished the feed, and paid for the training; that, following plaintiff's injury on Sunday, April 12, 1953, Koelke took the mare to another trainer in Springfield; and, that Koelke, not defendant, owned the mare. However, in view of plaintiff's theory of recovery on an express oral contract, ownership of the mare obviously was not important, as was recognized in plaintiff's principal verdict-directing instruction which simply referred to 'a certain sorrel mare' and required no finding as to ownership thereof. In any event, defendant and his wife had looked at the mare at Koelke's farm before she had been taken to Leer's place, and they admittedly were interested in acquiring the horse after she was broken and trained.

At the time of his injury, plaintiff was twenty-four years of age, lived in Carterville, and was employed by Atlas Powder Company. He had known Leer for about ten years and, at one time, had worked for him 'just taking care of horses.' On Thursday, April 9, 1953, plaintiff uneventfully rode the mare at Leer's request and at his place. When defendant Jordan, accompanied by his wife, three of their minor children and his father-in-law, went to Leer's place on the afternoon of Sunday, April 12, 1953, to see how the mare was 'coming along,' Leer contacted plaintiff and 'said that Mr. Jordan was up to his place and wanted me to ride the mare.' Being assured by Leer that 'it wouldn't take very long,' plaintiff took his own saddle and drove to Leer's place in his own automobile, where he saw defendant for the first time. 'Before I put the saddle on (the mare), I (plaintiff) told Mr. Leer that I couldn't afford to take any chances on riding one as silly as she was acting.' Defendant was standing 'approximately two steps' distant and, in the language of plaintiff's counsel embodied in a question which elicited an affirmative answer from his client, defendant was 'taking part in the conversation.' As given on direct examination, plaintiff's account of the conversation claimed to have constituted the express oral contract, on which he sues, was: 'And Lewis (Leer) said, 'Well, there is nothing to worry about.' He said, 'She isn't going to do anything. She will be just like she was last Thursday. But,' he said, 'we will take care of anything in the event that something does happen.' He said, 'There is nothing for you to worry about.' And Mr. Jordan nodded his head and said, 'Yes.' And so I took it for granted that Mr. Leer was speaking for Mr. Jordan.' Plaintiff's account of the same conversation on cross-examination was: 'He (Leer) said, 'She isn't going to do anything so there is nothing for you to worry about. In the event she does,' he said, 'we will take care of you.'' Because of this 'promise,' plaintiff tried to ride the mare, but she 'reared up and fell over.' Notwithstanding a cautionary warning by Mrs. Leer that 'you might get hurt,' plaintiff remounted the mare which promptly reared up and 'fell over again,' this time breaking plaintiff's right leg. Accepting plaintiff's version of the matter for the purpose of appellate review, we pass without consideration the positive and unequivocal testimony of defendant, his wife and the Leers that there was no such conversation as that related by plaintiff and that he undertook to ride the mare on Sunday, as he concededly had done on the previous Thursday, without any 'promise' having been made to him.

Of course, the first essential of a valid contract is the existence of two or more competent parties who agree [Gillen v. Bayfield, 329 Mo. 681, 46 S.W.2d 571, 574(1); State ex rel. St. Louis Car Co. v. Hughes, 348 Mo. 125, 152 S.W.2d 193, 198(6); Restatement of Law of Contracts, Vol. I, Section 15, p. 17]; and it would seem to be self-evident that, although the parties need not be named formally [Corbin on Contracts, Volume 2, Section 500, p. 690], there can be no enforceable agreement unless the contracting parties may be identified with reasonable certainty. Axelrod v. Pierron, 222 Mo.App. 201, 297 S.W. 151, 155; Clark v. Great Northern Ry. Co., C.C.Wash., 81 F. 282, 283; Virginian Export Coal Co. v. Rowland Land Co., 100 W.Va. 559, 131 S.E. 253, 262(5); North Packing & Provision Co. v. Lynch, 196 Mass. 204, 81 N.E. 891(1); Marshall v. White's Creek Turnpike Co., 47 Tenn. 252; Webster v. Ela, 5 N.H. 540. Having in mind that the mare in the instant case was owned by Koelke and not by defendant, that Mrs. Leer and Mrs. Jordan were standing nearby at the time, and that, in the conversation on which plaintiff relies, Leer said only that 'we will take care of anything' or 'we will take care of you,' we are by no means satisfied that, upon the record before us, any court or jury might identify with reasonable certainty the parties to the alleged oral agreement. But, believing that there are even more serious legal impediments to plaintiff's recovery, we do not rest our decision upon uncertainty or indefiniteness as to the contracting parties.

It is elementary and fundamental that, to make a valid contract, '(t)he parties must have a distinct intention, common to both, and without doubt or difference' [Dobbins v. City Bond & Mortgage Co., 343 Mo. 1001, 124 S.W.2d 1111, 1116(8); 17 C.J.S., Contracts, Sec. 31, p. 359], and that the minds of the contracting parties must meet upon and assent to the same thing in the same sense and at the same time. Huttig v. Brennan, 328 Mo. 471, 41 S.W.2d 1054, 1062(8); Green v. Cole, 103 Mo. 70, 15 S.W. 317, 318; Luckey v. St. Louis & S. F. R. Co., 133 Mo.App. 589, 113 S.W. 703, 704(2). Likewise, it has long been settled that, for a contract to be valid and enforceable, the essential terms thereof must be certain or capable of being rendered certain through application of the ordinary canons of construction or by reference to something certain [Wesson v. Horner, 25 Mo. 81; Bay v. Bedwell, Mo.App., 21 S.W.2d 203, 205(1); Hubbard v. Turner Department Store Co., 220 Mo.App. 95, 278 S.W. 1060, 1061(3); Burks v. Stam, 65 Mo.App. 455, 460(2); Restatement of Law of Contracts, Vol. I, Section 32, p. 40; 17 C.J.S., Contracts, Sec. 36c, p. 364], or, as the same thought has been expressed frequently in other language, that the terms of the agreement must be sufficiently definite to enable a court to give it an exact meaning. Brown v. Childers, Mo.App., 254 S.W.2d 275, 280(2); Williston on Contracts (Rev.Ed.), Vol. I, Section 37, p. 98; 12 Am.Jur., Contracts, Section 64, p. 554.

What plaintiff in the instant case 'took * for granted' is unimportant and immaterial, for whether a contract is made and, if so, what the contract is depend upon what is actually said and done and not upon the...