Webb v. Moran
| Decision Date | 03 October 1939 |
| Docket Number | 28810. |
| Citation | 96 P.2d 308,186 Okla. 140,1939 OK 369 |
| Parties | WEBB v. MORAN. |
| Court | Oklahoma Supreme Court |
Rehearing Denied Dec. 5, 1939.
Syllabus by the Court.
1. Prejudice suffered or agreed to be suffered other than that which a person was lawfully bound to suffer at the time of consent is sufficient consideration for the promise of another and will, in conjunction with other essential elements of a contract, impart to such promise the binding force of a contract.
2. A contract may be extinguished by mutual agreement of the parties. Such agreement to extinguish is, in itself, a contract and requires mutual assent.
3. Evidence examined and contract held not to have been extinguished by subsequent agreement.
4. "The courts look with disfavor upon destruction of contracts on account of uncertainty, and when possible, will so construe them as to carry into effect the reasonable intent of the parties." Oklahoma Portland Cement Co v. Pollock, 181 Okl. 266, 73 P.2d 427.
5. A contract is not void for uncertainty, even though it does not specify all the details with respect to its subject matter if, according to its terms, it is sufficiently definite so that it can be ascertained with a reasonable degree of certainty what the parties intended to agree to.
6. Contract examined and held not to be void for uncertainty.
7. When the time for the performance of a contract is not specified a reasonable time is allowed.
Appeal from District Court, Tillman County; John B. Wilson, Judge.
Action by W. T. Webb against Tom Moran to recover on a note executed by the defendant, wherein the defendant sought to avoid liability by reason of an alleged existing set-off. From an adverse judgment, the plaintiff appeals.
Judgment affirmed.
Robinson & Oden, of Altus, for plaintiff in error.
Cecil R. Chamberlin and Robert M. Helton, both of Frederick, and W. C. Austin and Robert B. Harbison, both of Altus, for defendant in error.
This action was instituted in the District Court of Tillman County on the 10th day of August, 1935, by W. T. Webb, as plaintiff, against Tom Moran, as defendant. The plaintiff sought judgment in the sum of $2,100 plus interest at the rate of 8% per annum from November 7, 1930, and $200 attorneys' fees on a promissory note executed by the defendant to the plaintiff on November 7, 1930, and payable on demand.
The defendant in his answer admitted the execution and validity of the note but sought to avoid liability by reason of an alleged existing set-off.
The cause was tried to a jury on the 6th day of October, 1937. The verdict and judgment in favor of plaintiff was for $608.90 with interest at the rate of 10% per annum from October 7, 1937. The plaintiff appeals, appearing herein as plaintiff in error. The order of appearance before the trial court is preserved in this court and our continued reference to the parties will be by their trial court designation.
It may be noted at the outset that there is a 2% discrepancy in the interest rate on the judgment and the interest rate provided in the note and requested in plaintiff's petition. Plaintiff, of course, could not complain of this error in his favor. He does not complain of his failure to separately recover interest on the indebtedness prior to judgment nor is he aggrieved because of the failure of the judgment to include any sum as attorneys' fee, although, the negotiable note upon which he predicated this action contemplated such fees upon certain specified contingencies which need not be discussed.
The plaintiff urges a reversal of the trial court's decision on the theory that the agreement which defendant successfully plead and proved in that court was unenforceable for want of consideration and void for uncertainty. He makes the additional contention that the agreement was abrogated by the defendant prior to reliance thereon. He, also, asserts that the trial court improperly instructed the jury in that the instructions authorized a verdict in whole or in part for the defendant upon an asserted contract fraught with the infirmities above mentioned. It may be noted in connection with plaintiff's position that he is not asserting the insufficiency of this pleading or proof to establish the agreement as relied upon by the defendant but is asserting the insufficiency of the understanding between the parties as plead and proved by the defendant to constitute a contract at all. The questions presented have been properly preserved for review.
We, therefore, address ourselves to the agreement and breach thereof plead and proved by the defendant and relied upon by him as a set-off to sustain the decision of the trial tribunal in reducing plaintiff's recovery on the note.
At the time of the transactions hereinafter delineated, the plaintiff was President of, and a heavy stockholder in the Farmers' State Bank of Tipton, Oklahoma. The bank was involved in difficulties which threatened its continued existence as a going concern. The idea of creating a subsidiary loan or intermediate credit association as a separate legal entity was conceived. It was hoped that through this proposed instrumentality the bank might be saved and, incidentally, the general credit condition of the community strengthened. The plaintiff and others sponsored the idea and engaged in promotional activities in connection with an attempted creation of the proposed "Intermediate Credit Association."
The plaintiff contacted Tom Moran, who was his acquaintance as well as a customer of the bank. He proposed that the defendant contribute $2,000 to a fund to be used in the creation of the proposed association assuring him at the time that he (the defendant) would be able to borrow money from the association at a low rate of interest. The defendant did not have any appreciable amount of available cash. He did, however, have some cotton which he was holding for a higher price than the then prevailing market. He expected to realize 10 or 12 cents per pound for the cotton.
In view of the foregoing situation, the parties entered into an oral agreement, whereby, the defendant agreed to deliver to the plaintiff or the bank, of which plaintiff was president, ninety-five (95) bales of cotton to be shipped by the plaintiff to a cotton concern at Houston, Texas, to be there held and margined as defendant's cotton until the market reached a point where the defendant would realize not less than 10 cents per pound. The plaintiff undertook to protect the "marginal" cotton and see that it was not sold until its sale would enable the defendant to realize the price stipulated. It was understood that the Houston concern would advance to the defendant $20 per bale on the cotton and that the money received would be delivered to the plaintiff for the purpose of assisting in the creation of the Intermediate Credit Association.
In accordance with this agreement, the defendant delivered his cotton as stipulated and received the advance in the sum of $1,900 which incidentally was somewhat less than the then market value (about $8.50 per bale). He (the defendant) added $100 to the sum thus received and on December 17, 1931, delivered $2,000 to the plaintiff for the purpose agreed upon.
The Intermediate Credit Association enterprise did not materialize as expected and by mutual agreement the money so subscribed was turned back to the defendant as well as to other subscribers. In a subsequent conversation between the parties, the plaintiff recognized his continued obligation to protect the margined cotton. This, according to the proof, he failed to do and the cotton, without the knowledge of defendant and while he was relying upon the protection to be afforded by the plaintiff, was sold by the Houston concern on a low market as the result of which the defendant realized nothing in excess of the $1,900 previously received, except a possible $52 which he was not sure about. Subsequently and on the 12th day of July, 1933, the market reached a stage where defendant could have realized 10 cents per pound had the cotton still been available for sale. The defendant claimed damages for breach of contract by reason of plaintiff's failure to protect the cotton from sale at the instance of the Houston cotton dealer.
The plaintiff asserts that his agreement to protect the cotton was not binding because it was without consideration. It is argued that under the agreement, no consideration did or "would flow to the plaintiff." Plaintiff seems to be laboring under a misconception of the breadth of...
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