Underwood Typewriter Co. v. Century Realty Co.

• Decision Date: 24 April 1906
• Citation: 94 S.W. 787,118 Mo. App. 197
• Parties: UNDERWOOD TYPEWRITER CO. v. CENTURY REALTY CO.
• Court: Missouri Court of Appeals

94 S.W. 787

118 Mo. App. 197

UNDERWOOD TYPEWRITER CO. v. CENTURY REALTY CO.

St. Louis Court of Appeals. Missouri.

April 24, 1906.

1. CONTRACTS—CONSIDERATION—SUFFICIENCY.

A lessor, in a lease prohibiting the assignment thereof without first obtaining his written consent, promised in writing to give his written consent on the lessee procuring an acceptable tenant. Held that, though the promise when made was without consideration, it became enforceable on the lessor procuring an acceptable tenant; the time and labor spent by the lessee in securing the tenant constituting a consideration for the promise.

2. SAME—MUTUALITY OF OBLIGATION.

Mutuality was imported into the agreement, on the lessee procuring an acceptable tenant, which related back to its origin and rendered it valid.

Bland, P. J., dissenting.

Appeal from St. Louis Circuit Court; Moses N. Sale, Judge.

Action by the Underwood Typewriter Company against the Century Realty Company. From a judgment for defendant, plaintiff appeals. Reversed and remanded.

John B. Denvir and Carter & Sager, for appellant. Dawson & Garvin, for respondent.

NORTONI, J.

Omitting caption, the petition is as follows: "Now comes the plaintiff in the above entitled cause, and, by leave of court first had and obtained, files this, its second amended petition herein, and for cause of action states that it is a corporation duly organized and existing under and by virtue of the laws of the state of New Jersey. That the defendant is a corporation organized and existing under and by virtue of the laws of the state of Missouri. That the plaintiff was formerly known as the Wagner Typewriter Company, but it has duly changed its name to the Underwood Typewriter Company. That defendant, Century Realty Company, is the successor of the Century Building Company. That on the 5th day of December, 1900, plaintiff entered into an agreement in writing with said Century Building Company, whereby plaintiff leased the space known as No. 309 North Ninth street in the city of St. Louis, state of Missouri, and certain space appurtenant thereto for a period of five (5) years beginning on the 1st day of February, 1901, and ending on the 31st day of January, 1906. That plaintiff thereupon entered into possession of said premises. That said agreement provided, among other things, that neither said premises nor any part thereof should be assigned or underlet without the written consent of defendant indorsed thereon. That plaintiff secured from defendant its written agreement to give its written consent to an assignment of said lease to an acceptable tenant. That, relying upon said written agreement, plaintiff, with the knowledge of defendant, expended a large amount of time and labor in securing an acceptable and satisfactory tenant for the space embraced in said lease, and did secure such tenant for said space. That, notwithstanding the fact that plaintiff had procured an acceptable tenant for said space, defendant refused, and still refuses, to consent to the assignment of said lease and to permit said tenant to enter into the possession of said premises, though often requested so to do. That by reason of defendant's refusal to consent to said assignment of said lease, as aforesaid, plaintiff was and is prevented by defendant from securing such tenant at a large advance over the rent reserved by defendant under said lease, to its damage in the sum of four thousand five hundred ($4,500) dollars. Wherefore plaintiff prays judgment for four thousand five hundred ($4,500) dollars." To this petition defendant interposed a general demurrer, making the point that the agreement alleged appeared to be void for want of consideration and mutuality. The court sustained the demurrer, and plaintiff declined to further plead. Thereupon judgment was entered by the court for defendant, and plaintiff appealed.

The material facts alleged are: First, that on December 5, 1900, plaintiff became lessee of the premises described in the petition under a written lease executed by defendant for a term of five years; second, that, under the terms of said lease, plaintiff was prohibited from subletting the premises or assigning the lease without first obtaining the written consent of the defendant on the back of the said written lease; third, that the defendant afterwards, during the term of the lease, made its promise in writing to the plaintiff to give its written consent on the back of said lease to an assignment thereof by plaintiff to an acceptable tenant when procured and produced to it by plaintiff; fourth, that, relying upon this promise, plaintiff, with the knowledge of defendant, expended a large amount of time and labor in securing an acceptable and satisfactory tenant for the premises and did secure such tenant, from whom plaintiff could have realized a profit to itself, had the defendant executed the written consent to assign the lease, as it had theretofore promised; fifth, that the defendant refused, after plaintiff had performed on its part, to give its said written consent to the assignment of the lease, whereby plaintiff is damaged, etc.

The demurrer admits these facts to be true, and the question presented thereby calling for the opinion of the court is: Does the petition show mutuality in that sense that an action can be maintained by a party who has performed his part against the party who refuses to perform? We are quite clear that it does. Now it is true that there is no mutuality shown between these parties in the first instance. The agreement, when entered into, was clearly nudum pactum. The defendant, being under no manner of obligation to do so, made a written promise to make the indorsement on the lease permitting the assignment thereof, upon plaintiff's furnishing a satisfactory tenant. Now for this agreement the defendant received no compensation nor reward of any kind or nature, nor did plaintiff inconvenience itself or forfeit any right or make any expenditure of time or money at the time of the promise, and, while the matter was in this posture, it is true, plaintiff could not have maintained any suit thereon for its breach until he had first performed. In fact, there could have been no breach until plaintiff had first performed, for his performance was essentially a precedent condition, and there was therefore no obligation imposed upon the defendant until the plaintiff had performed by finding and producing a satisfactory tenant. It is true, on the other hand, that defendant could not have maintained any suit against the plaintiff thereon for its failure to perform, because there was no obligation imposed thereby upon it to perform; in fact, prior to the plaintiff's performance, the matter stood as it was, a mere naked promise on the part of the defendant to perform after the plaintiff had performed, and, under these circumstances, there was, of course, want of mutuality, want of lawful consideration, and the agreement was therefore a nude pact at that time and remained so, unless mutuality or consideration entered therein later in some manner which will satisfy the law. It becomes important, then, to ascertain what will satisfy the law in this behalf. Let us examine. We find, first, that it is elemental that, while a valuable consideration is usually treated and thought of as something passing between the parties whereby one surrenders and the other receives something of value, this is not essential. A consideration no more means that one party has profited than it does that the other party has put himself to some trouble or inconvenience or abandoned some right or assumed some burden on the faith of the promise of the other party, and it is wholly immaterial that the party against whom the promise is sought to be enforced has received anything of value or an actual benefit to him for his promise. The law pertaining to the sufficiency of a consideration is satisfied if the moving party, the promisee, puts himself to inconvenience, trouble, or expense, relying upon the faith of the promise of the party against whom the promise is sought to be enforced, for in such case the inconvenience, trouble, and expense will be taken to have been incurred at the instance and request of the promisor. School Dist. v. Scheidley, 138 Mo. 672-684, 40 S. W. 656, 37 L. R. A. 406, 60 Am. St. Rep. 576; Halsa v. Halsa, 8 Mo. 303-307; German v. Gilbert, 83 Mo. App. 411; Koch v. Lay, 38 Mo. 147; Webb's Pollock on Contracts, 167; 9 Cyclopedia of Law & Proc. 308. In such case the law, in a spirit of justice, regards that inconvenience, trouble, and expense as having been invited and entailed by the promise of the other party and therefore impliedly at his instance and request, and, the moving party having discharged his undertaking, it therefore affixes the mutuality of obligation and sufficiency of consideration which relates back to the inception of the agreement as against the promisor and requires him to respond as well. This is the principle, as we understand it, as will be evidenced by consulting the following authorities in point: School Dist. v. Scheidley, 138 Mo. 672, 40 S. W. 656. 37 L. R. A. 406, 60 Am. St. Rep. 576; Laclede Const. Co. v. Tudor Iron Works, 169 Mo. 137, 69 S. W. 384; Willets...