Sutter v. Raeder

• Decision Date: 31 March 1899
• Citation: 149 Mo. 297,50 S.W. 813
• Parties: SUTTER v. RAEDER.
• Court: Missouri Supreme Court

50 S.W. 813

149 Mo. 297

SUTTER v. RAEDER.

Supreme Court of Missouri, Division No. 1.

March 31, 1899.

REVIEW — ACTION AT LAW — TRIAL TO COURT — SPECIAL FINDING OF FACT — CONTRACT — REQUISITES — MODIFICATION — EVIDENCE — DEFENSE — WAIVER.

1. Errors apparent on the face of the record, and whether plaintiff made out a prima facie case, are the only questions reviewable in an action at law tried to the court, in which there were no instructions except the demurrer to the evidence, which was overruled.

2. The fact that pursuant to Rev. St. 1889, § 2135, the court made a special finding of fact, does not change the rule that the supreme court will not review such findings in a lower court in an action at law.

3. In an action on an option contract, on an issue as to whether the option had been extended, letters relating to the extension negotiations were admissible, though they unavoidedly disclosed, in connection therewith, propositions of modification of the contract not tending to establish or disprove an issue therein.

4. In an action for breach of contract, defendant's failure to plead a modification thereof is a waiver of that defense.

5. Unless the minds of the parties meet at the same time, on the same terms, there can be no contract between them.

Appeal from St. Louis circuit court; Leroy B. Valliant, Judge.

Action by Charles Sutter against Henry Raeder. From a judgment for plaintiff, defendant appeals. Affirmed.

Action for damages for breach of contract. In 1891 Sutter, Raeder, and M. F. Taylor leased certain premises on the corner of Ninth and Olive streets, in the city of St. Louis, from John W. Kaufman, for a term of 99 years, with the purpose of erecting a new building thereon. The lease was not signed by Kaufman's wife, and contained a clause of forfeiture if any installment of rent remained unpaid for 10 days after it fell due. In consequence of these infirmities, it was found, after several efforts, to be impossible to secure the necessary capital, on the security of the leasehold interest, to improve the premises, and likewise impossible to sell the lease. The improvements then on the premises were old and unattractive, and in consequence the rents derived from the premises were not sufficient to pay the rent, taxes, and insurance, or to make necessary repairs, — much less, improvements. The parties were therefore compelled to meet the excess out of their private resources. On the 1st of August, 1892, Sutter, the plaintiff, in common with the other parties, had met his responsibility in this respect, having advanced some $4,000 for this purpose, and was also liable on two notes, — one for $2,500, which was held by defendant for negotiation, and one for $850, which had been negotiated, but was not yet due. Under the arrangements, among themselves, defendant owned one-half interest in the lease, and plaintiff and Taylor owned one-quarter interest each. But before the 2d of September, 1892, plaintiff and Taylor had assigned a portion of their interest in the leasehold to H. J. Meyer, and Taylor had transferred his remaining interest to plaintiff, so that the interests of the parties at that time were: Defendant five-tenths, plaintiff three-tenths, and Meyer two-tenths. Defendant wanted to get rid of plaintiff as a part owner of the leasehold, and wanted to organize a corporation, to be called the Central Realty & Improvement Company, with a capital stock of $200,000, to be fully paid up by transferring the leasehold to the corporation, for the purpose of erecting a new building on the premises. Accordingly it was agreed that, in consideration of the transfer by plaintiff of his three-tenths interest to defendant, he (defendant) would release plaintiff from his liability on the $2,500 note held by him, and would cancel the same, and would also pay the $850 note at maturity; and in addition thereto it was agreed as follows: "In consideration of one dollar, to me in hand paid, and other valuable consideration I agree: (1) That in case the building project now under consideration, for the property bounded on the east by Ninth street, on the north by Locust street, on the south by Olive street, and on the west by an alley, in the city of St. Louis, Mo., or a similar building enterprise on the same property costing not less than $750,000, of which Raeder, Coffin & Crocker are the architects, be an assured fact, within six months from this date I will give to E. A. Meysenburg a note for $5,000 (five thousand dollars), payable in ninety days from the date of issue; this note to be issued when the order has been received by said Raeder, Coffin & Crocker to proceed with the plans of said building, but in no event later than six months from this date. (2) In the event said building project, as described above, is an assured fact within the time above stated, the said E. A. Meysenburg shall have the option to choose as payment for the said consideration, in lieu of the said note for $5,000.00, a note conditioned the same as the note for $5,000.00, but for the amount of sixteen hundred and sixty-seven dollars, and the issue to him of $20,000.00 of stock in a company to be organized for the purpose of acquiring the present interests in the said property, having a total capital of $200,000.00. (3) In the event that the building project above described is not an assured fact within six months from this date, I will issue to said F. A. Meysenburg $20,000.00 in stock of the company to be formed as above described, provided said E. A. Meysenburg calls for said amount of stock within six months from this date, and pay for the proper share falling to this amount of stock of the expenses incurred in carrying the abovedescribed property from August 1, 1892. Henry Raeder, St. Louis, September 2, 1892."

The agreement was made in the name of E. A. Meysenburg, at plaintiff's request, because he owed Meysenburg for money loaned plaintiff to pay carrying charges, but Meysenburg at once assigned the contract to plaintiff. The plaintiff conveyed his interest in the lease to defendant, who canceled and surrendered the $2,500 note, and paid the $850 note, and immediately organized the Central Realty & Improvement Company, transferred the lease to it, and received a certain portion of the stock of the company as his share. The company afterwards secured a new lease from Kaufman, which was signed by his wife, and did not contain the objectionable forfeiture clause. Before the 2d of March, 1893, Meysenburg, acting for plaintiff, made several ineffectual attempts to secure from defendant a statement of the carrying charges from August 1, 1892. Before the expiration of the six months specified in the contract, it became apparent that the "building project" would not be an "assured fact"; and on the 23d of February, 1893, Meysenburg wrote to defendant, calling attention to the fact that the option embodied in the third paragraph of the agreement would expire on the 2d day of March, and asked an extension of the same until June 1, 1893, and further asked for a statement of the carrying charges. The defendant refused to extend the time until June 1st, but proposed that if Meysenburg would pay a note for $250 made by Taylor and held by defendant, and would pay, $1,200, approximated, on account of carrying charges, and $400 on account of repairs then being made on the building (said amounts being one-tenth of such costs), he (defendant) would take 50 of the 200 shares referred to in the third paragraph of the agreement, at $20 a share, aggregating $1,000, and apply that sum on the $1,850 approximated as aforesaid, thereby leaving Meysenburg to pay $850, and get 150 shares. On the 25th of February, 1893, Meysenburg replied, expressing regret that defendant had not granted the extension, and asked an itemized statement of the carrying expenses, so that he could make his plans accordingly, and requested an extension of the option until March 18th, but did not accept defendant's proposition. On the 27th of February, defendant answered, extending the option until March 16th, and suggesting further personal negotiations respecting the option. On the 9th of March, defendant again wrote Meysenburg to the same effect. On the 10th of March, Meysenburg replied, regretting his inability to go to Chicago, but telling defendant that Sutter was in Chicago, and would call on him, and saying he (Meysenburg) would inform defendant what was to be done in the matter of the option by the 16th of March. Sutter had several interviews with defendant before the 16th, at which propositions along the lines of defendant's first proposition were discussed. On the 11th of March, defendant wrote Meysenburg...