Underwood Typewriter Co. v. Century Realty Co.

• Citation: 119 S.W. 400,220 Mo. 522
• Parties: UNDERWOOD TYPEWRITER CO. v. CENTURY REALTY CO.
• Decision Date: 22 May 1909
• Court: Missouri Supreme Court

119 S.W. 400

220 Mo. 522

UNDERWOOD TYPEWRITER CO. v. CENTURY REALTY CO.

Supreme Court of Missouri.

May 22, 1909.

1. LANDLORD AND TENANT (§ 76)—CONSENT TO ASSIGNMENT OF LEASE—CONSIDERATION —UNILATERAL CONTRACT—PERFORMANCE OF PROMISE.

Plaintiff's lease prohibited assignment without the lessor's written consent. The lessor promised in writing to give such consent on plaintiff's obtaining an acceptable tenant. Held that, plaintiff in reliance on such promise having spent time and labor in securing an acceptable tenant, plaintiff's act in so doing constituted a sufficient consideration for defendant's formal unilateral promise.

2. CONTRACTS (§ 10)—MUTUALITY OF OBLIGATION—UNILATERAL CONTRACT.

Mutuality of obligation is not an essential element of a unilateral contract.

Valliant, C. J., and Woodson and Burgess, JJ., dissenting.

In Banc. Case Certified from St. Louis Court of Appeals.

Action by the Underwood Typewriter Company against the Century Realty Company. A judgment for defendant was reversed on plaintiff's appeal (118 Mo. App. 197, 94 S. W. 787), and the case was transmitted to the Supreme Court by reason of a division in the Court of Appeals. Reversed and remanded.

This case originated in the circuit court of the city of St. Louis, and had for its object the recovery of $4,500 damages, alleged to have been sustained by plaintiff because of a breach of written permission, whereby the latter was authorized to sublet certain floor space in defendant's building, which plaintiff had leased from defendant.

The petition was in the following language (omitting caption):

"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 coporation 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 `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 to do so. 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 the defendant filed a general demurrer, which was by the trial court sustained. The plaintiff declined to plead further, and judgment was rendered for the defendant. From that judgment the plaintiff appealed to the St. Louis Court of Appeals. By a divided court the judgment of the circuit court was reversed and the cause remanded. Bland, P. J., filed a dissenting opinion for the reasons therein stated, and the cause was for that reason transferred to this court under the mandate of the Constitution.

Jno. B. Denvir, Jr., and Carter, Collins & Jones, for appellant. Dawson & Garvin, for respondent.

WOODSON, J. (after stating the facts as above).

1. By reading this petition it will be seen that the respondent leased to appellant certain floor space in the Century Building for a period of five years, with a clause therein prohibiting the latter from assigning or subletting the premises without written permission. The petition then charges respondent agreed to give its consent to appellant to assign said lease to an acceptable tenant, but subsequently refused to consent to said assignment, notwithstanding respondent had procured an acceptable tenant; and that, relying upon said agreement, it had expended a large amount of time and labor, with the knowledge of respondent, in securing said tenant. The petition then states plaintiff had been damaged in the sum of $4,500. The demurrer challenges the sufficiency of the allegations of the petition to constitute a cause of action against the respondent.

The petition does not allege that appellant paid or agreed to pay respondent any sum whatever in consideration for the permit to appellant to assign the lease. If that was the extent of the agreement between them, then clearly the agreement would be void for want of consideration to support it. Realizing that infirmity in the so-called agreement, the appellant undertakes to strengthen and cure that defect by alleging that it relied upon the agreement, and with the knowledge of respondent it expended a large amount of time and labor in securing an acceptable tenant for the former. There can be no question but what the expenditure of time and labor, in pursuance to a contract, constitutes a valid consideration therefor, and, if otherwise valid, its validity will be upheld by the courts. That rests upon hornbook law, and as far back as the case of Marks v. Bank, 8 Mo., loc. cit. 319, this court, in speaking through Scott, J., used this language: "It is unnecessary that the consideration should be adequate in point of actual value, the law having no means to decide upon this matter. If the least benefit or advantage be received by the promisor from the promisee or a third person, or if the promisee sustain any, the least, injury or detriment, it will constitute a sufficient consideration to render the agreement valid." While the case in which that language was used has been practically overruled in some of the later cases, yet none of them question the soundness of the principle of law enunciated in those words. Wiley v. Hight, 39 Mo. 130; Wild v. Howe, 74 Mo., loc. cit. 553.

But that principal of law falls far short of healing the imperfection before pointed out in the appellant's case, for the reason that that rule does not apply except in bilateral contracts, where there is a promisor and promisee. In the case at bar the promise of respondent to permit appellant to assign the lease was unilateral, and was without consideration of any kind to support it. The appellant never at any time, even down to the time of bringing this suit, agreed to find or furnish respondent a suitable tenant; and if appellant had at any time, or even now should withdraw its tender of such tenant, clearly the respondent would have no cause of action against the former for said refusal or withdrawal, for the obvious reason that it never agreed to do so. According to the allegations of the petition, the appellant was under no legal or moral obligation to find for respondent a suitable tenant for the occupancy of the floor space in question.

For the purpose of illustration, let us suppose a farmer should enter a shoe store and ask the proprietor thereof if he would take a cord of hickory wood for a certain designated pair of shoes, and in reply thereto the proprietor should say, "Yes," and without more the farmer should turn and walk from the store without agreeing to take the shoes or to furnish the wood, and he should then return home and chop a cord of hickory wood, load it upon his wagon, haul it to town, drive up to the store, and say to the proprietor that he had chopped the wood, hauled it in for him, and demand the shoes in consideration of and in payment for the wood; and in reply thereto suppose the merchant had said to the farmer that he was sorry, but he could not deliver the shoes to him, for the reason that he had sold them during the time which had elapsed between the first conversation and the time when the wood was hauled to town and tendered to the merchant—could it be seriously contended that the farmer would have a cause of action against the merchant for breach of contract for his failure to deliver the shoes? I think not, for the reason the farmer never agreed to take the shoes, or to cut, haul, and deliver the wood in exchange for them. Such a contract, if it may be so called, would clearly be unilateral in character, and the subsequent tender of the wood would not change the agreement into a bilateral contract. The tender of the wood could not perform the twofold office of furnishing a consideration for the contract, and at the same time constitute an agreement to accept the shoes, which had never been done before. And the same is true as regards the case at bar. The finding of a suitable tenant could not perform the twofold function of furnishing a consideration to support the promise of the Century Realty Company to agree to subletting of the floor space to such tenant, and at the same time...