Spencer v. Taylor

• Decision Date: 11 June 1904
• Docket Number: 13,674
• Parties: W. W. SPENCER v. F. D. TAYLOR et al
• Court: Kansas Supreme Court

77 P. 276

69 Kan. 493

W. W. SPENCER v. F. D. TAYLOR et al

No. 13,674

Supreme Court of Kansas

June 11, 1904

Decided January, 1904.

Error from Sumner district court; C. L. SWARTS, judge.

Judgment reversed and remanded.

SYLLABUS

SYLLABUS BY THE COURT.

CONTRACT -- Sale of Mineral Waters--Not Void for Want of Mutuality. A contract in which one party agrees at a designated price to furnish certain mineral waters sufficient to supply the trade of a city, and the other party agrees to furnish vessels for shipment, to pay all express, freight and advertising expenses, "to use his best endeavors to push the sale of said mineral waters" in said city, and to pay the agreed price to the first party at certain times, is not void for want of mutuality of obligation.

Adams & Adams, and James Lawrence, for plaintiff in error.

Hackney & Hackney, and Hackney & Lafferty, for defendants in error.

ATKINSON J. All the Justices concurring.

OPINION

ATKINSON, J.:

This action was instituted by W. W. Spencer against F. D. Taylor and J. W. Reeves to recover damages alleged to have been sustained on account of a failure to comply with the terms of a written contract. After a jury had been impaneled and counsel for plaintiff had read to them the petition of plaintiff with the contract sued on, and made a statement of plaintiff's claim, the court, upon motion of counsel for defendants, discharged the jury and rendered judgment for defendants for costs. Plaintiff brings error.

The following is the contract upon which suit was brought:

"This instrument, made and entered into by and between Taylor & Reeves of Cowley county, Kansas, first parties, and W. W. Spencer, of Geuda Springs, Kan., party of the second part,

"WITNESSETH: That said first party hereby covenants and agrees to sell and furnish the second party f. o. b. cars at Geuda Springs, Kan., sufficient mineral waters of the Geuda mineral springs to supply the trade of the city of Wichita, Kan., of such springs as required, natural and uncarbonated, for the period of five years from the 1st day of August, 1900, at the price of three cents per gallon, and as soon as the quantity so sold exceeds an average of more than two hundred (200) gallons per day the price is to be two and one-half (2 1/2) cents per gallon; and when the waters are carbonated the same are to be furnished, but the price to be made to correspond with the additional expenses for all costs incident to such carbonating, bottling, casing, etc. Said Spencer is to have the privilege of renewing this agreement at the termination of said term of five years for the period of another five years on fulfilling his part of this agreement. Said Spencer is to furnish the vessels necessary in which to ship such natural mineral waters, to pay all expressage or freight, and is to use his best endeavors to push the sales of said mineral waters in Wichita, Kan., and is to have the exclusive sale of said waters in said city of Wichita during the existence of this agreement. Said Spencer is to pay for all advertising and all other expenses made by him in connection with the sale of such waters, settlement to be made and money paid over on each and every of the 1st days of each month during this agreement.

"IN WITNESS WHEREOF, we have hereunto subscribed our names this 1st day of August, A. D. 1900, at Geuda Springs, Kan. TAYLOR & REEVES.

W. W. SPENCER."

The district court found that the petition of plaintiff, to which the contract was attached and formed a part, failed to state a cause of action. It was contended by counsel for defendants that the contract was void for want of mutuality. It is apparent from the record that in sustaining the motion of defendants for judgment the court found that the petition of plaintiff, with contract attached, failed to state a cause of action on the ground that there was no mutuality of obligation in the contract. The opening statement made to the jury by counsel for plaintiff will not here receive consideration, as it was confined substantially to the averments of the petition. In addition to the allegations with reference to the execution of the contract, a recital of the material matters contained therein, and the damages sustained, the petition contained the following averments:

"That at the time of making said contract plaintiff was a resident of Geuda Springs, Kan.; that as soon as said contract was executed the said plaintiff, relying upon the same, and with the intention and for the purpose of carrying out the provisions and fulfilling his part of the said contract moved to the city of Wichita, Kan., and purchased horses, wagons, tanks, cases, bottles and other necessary articles to carry on said business, at an aggregate cost to the plaintiff of the...