Pittsburgh Plate Glass Co. v. Paine & Nixon Co. ( 1930 )

The petition for reargument is denied. It was very appropriately filed. In writing the opinion in this case the consideration and discussion of respondent's briefed claim that the contract was void for lack of mutuality was inadvertently omitted.

The claim rests upon the case of Bailey v. Austrian, 19 Minn. 465 (535) wherein it was held that a contract, where one party to it agreed to purchase all of a certain material which he might want in his business during a certain time, was not valid for lack of mutuality. The theory was that there was no engagement to "want" any of such material and hence no agreement to purchase any. The promises were all on one side.

Bailey v. Austrian, 19 Minn. 465 (535) was followed in Tarbox v. Gotzian, 20 Minn. 122 (139). These two cases were distinguished in Minneapolis Mill Co. v. Goodnow, 40 Minn. 497,42 N.W. 356, 4 L.R.A. 202, wherein it was said, under the circumstances and facts therein involved, that the promise, supposed to be missing, was implied. The rule of law to the effect that there must be a mutuality of engagement in order to have a valid contract is well settled. This court has however drifted away from the construction put upon the facts in the Bailey case,19 Minn. 465 (535). In the Goodnow case, 40 Minn. 497,42 N.W. 356, 4 L.R.A. 202, we announced the rule of the implied promise. The reasoning in the Goodnow case was adopted as a part of the basis for the decision in Hoffman v. Maffioli,104 Wis. 630, 80 N.W. 1032, 47 L.R.A. 427, which was quoted with approval in Rotzien-Furber Lbr. Co. v. Franson, 123 Minn. 122,143 N.W. 253, wherein the rule is stated.

It was also said in Ames-Brooks Co. v. Aetna Ins. Co.83 Minn. 346, 86 N.W. 344, that where the contract presupposes the continuance of the promisor's business it included by necessary intendment a promise on its part.

We are of the opinion that the contract in this case presupposed a continuance of the well established business of the appellant. City of Marshall v. Kalman, 153 Minn. 320,190 N.W. 597; Trainor v. Buchanan Coal Co. 154 Minn. 204,191 N.W. 431.

It is clear that if Bailey v. Austrian, 19 Minn. 465 (535) was before the court today we would hold that the promise to purchase the pig iron was present by implication and that the contract was based upon the mutual understanding that the well established business was to continue.