Malloy v. Egyptian Tie & Timber Co.

*431 BRADLEY, J. This is an action'for damages for breach of contract relative to some ties. The cause was tried before the court and a jury, resulting in a verdict and judgment in favor of plaintiff for $1203.45. Failing to get a new trial on motion defendant appealed. The contract relied on is in the form of a letter and is as follows: “Poplar Bluff, Mo., 1-6-1920. Mr. Green Malloy, Fremont, Missouri. Dear Sir: In confirmation of our agreement you will please enter our order for all your oak ties until further notice, price as follows: (Here follows description of ties and prices) Terms, sight draft, f. o. b. cars Fremont, Mo. Inspection by representative W. L. E. or C. & I. Ry., most probably Mr. Wm. Orrick. Yours truly, (Signed) Egyptian Tie and Timber Co. Per R. A. Milster.” Under this contract plaintiff within two months cut and delivered at Fremont, ready for inspection and shipment, ties amounting to $1958.45. Defendant, it seems, had made arrangements with other parties to take the ties cut by plaintiff, and these parties failed to take said ties, and therupon defendant refused to take plaintiff’s ties. Plaintiff, after waiting on defendant for quite a while to take said ties, sold them to another company and sued for his losses. Defendant stands on two propositions in its brief. First, it contends that the contract sued on is unilateral and void, and that its requested instruction in the nature of a demurrer should have been given, and, second, that *432 the court erred in excluding evidence explaining the circumstances or conditions under which the contract was made. We axe of the opinion that the contract in the beginning was unilateral, because under its terms no specified number of ties was mentioned. “Enter our order for all your oak ties until further notice” was not such an order or purchase as required plaintiff: to furnish any ties; he was not bound to do anything under this indefinite contract. Hudson et al., v. Browning, 264 Mo. 58, 174 S. W. 393; Reigart v. Manufacturers Coal & Coke Co., 217 Mo. 142, 117 S. W. 61; Campbell v. American Handle Company, 117 Mo. App. 19, 94 S. W. 815 ; Cal Hirsch & Sons Iron & Rail Co. v. Railroad, 48 Mo. App. 173, 127 S. W. 623; Royal Brewing Co. v. Uncle Sam Oil Co., — Mo. App., —, 226 S. W. 656.] it appears here, however, that plaintiff cut and delivered at Fremont 1820 ties under this contract, and that defendant accepted one load before there was any intimation from defendant that it would not accept the ties. In fact it was about four months after the ties were cut and delivered at Fremont before defendant definitely announced that it would not accept the ties. During this time defendant’s excuse was, as'appears from the record, that it could not get an inspector. This is not a case like those cited supra, where the unbound party to a unilateral contract is suing for its breach before performance on his part, but here plaintiff, not bound in the beginning, performed to the extent of cutting 1820 ties under the contract, and is contending that in this situation defendant was bound to accept the ties cut and tendered, notwithstanding the lack of mutual obligation in the beginning, or respond in damages. We think plaintiff’s contention is sound and sensible and in accordance with the law of this State upon the question. Want of mutuality and lack of consideration are frequently closely related, and a consideration of the one soon discloses its relation to the other. Discussing the law of mutuality of contracts, 6 R. C. L., page 686, says that what *433 ever may be the rule with respect to the specific enforcement of contracts there can be no doubt that if a contract is ever unenforceable in other ways because of the lack of mutuality it is because such lack of muuality creates a want of consideration. In Underwood Typewriter Co. v. Century Realty Co., 220 Mo. 522, 119 S. W. 400, the principle is laid down as appears in the second syllabus that a nude unilateral agreement, supported by a valid consideration because the promisee has performed, is enforceable, and for its breach the promisor must respond in damages and no mere whim or caprice will be accepted as a refusal to perform, although the promisor can recover nothing if the promisee does nothing in pursuance to the promise. [See, also, Schlitz Brewing Co. v. Poultry and Game Co., 287 Mo. 400, 229 S. W. 813; Bank v. Pillman, 176 Mo. App, l. c. 438, 158 S. W. 433; Wallace v. Workman, 187 Mo. App. 113, 173 S. W. 35; Reynolds v. Walsh-Griffith Tie & Lumber Co., — Mo. App., —, 227 S. W. 438.] We are clearly of the opinion that defendant’s instruction in the nature of a demurrer was properly refused. As to the second contention that the court erred in rejecting evidence pertaining’ to the circumstances or conditions under which the contract was made; defendant at no time made any offering or definite showing as to what this evidence would be, and in this situation the competency of the evidence, whatever it was, is not before us. [Edwards v. Yarbrough, — Mo. App. —, 201 S. W. 972.] The judgment below should be affirmed and it is so ordered. Cox, P. J., and Farrington, J., concur.