Laclede Investment Corp. v. Kaiser , 1980 Mo. App. LEXIS 2437 ( 1980 )

SMITH, Judge.

Defendants Jerry Kaiser and David Moul-ton appeal from a judgment in a court-tried case in favor of plaintiff Laclede Investment Corporation. The suit was grounded upon three theories: express breach by defendants of a loan agreement contract with plaintiff; promissory estoppel based on representations made by defendants which induced plaintiff to lend a limited partnership $425,000; and, recovery by plaintiff as a third party beneficiary for breach of a promise by defendants to complete construction of an apartment project in north St. Louis County, the purported promise being made in articles of limited partnership between Laclede Development Corporation (a separate corporate entity from plaintiff) as a limited partner and defendants as general partners.

The parties stipulated that plaintiff’s damages, if it was entitled to recover, were $576,602.37 principal and accumulated interest. Judgment was rendered in that amount. Jerry Kaiser died in the course of the appeal and his executrix Patricia A. Kaiser was substituted as a party.

The judgment is reversed.

This is the second appeal in this case. In the first trial, after a jury verdict for plaintiff, the trial court ordered a new trial because of error in permitting prejudicial closing argument by plaintiff concerning the uncollectibility of any judgment which might be rendered.

This court affirmed in Laclede Investment Corp. v. Kaiser, 541 S.W.2d 330 (Mo.App.1976), holding there was no abuse of discretion by the trial court in granting a new trial. A detailed statement of the facts is included in that decision.

Kaiser and Moulton were partners in K & M Investment Company, a general partnership. In 1969, the partnership borrowed $1,860,000 from Roosevelt Federal Savings and Loan Association to construct the “County Fair” apartment project in north St. Louis County. This loan was secured by a first deed of trust on the apartment project real property which was owned by the general partnership.

Before the project was completed defendants were out of money. They learned through a real estate appraiser that Laclede Gas Company was embarking on a diversification program and might be interested in investing in real estate. Kaiser approached David L. Gardner, vice president, secretary and treasurer of Laclede Investment Corporation, for the purpose of negotiating a loan of money to be used to pay for the completion of the “County Fair” project. Laclede Investment, a subsidiary of Laclede Gas Company, was organized for purposes of managing the diversification program.

Although the initial meeting was with Mr. Gardner, most of the negotiations for the loan were carried on with Donald A. Novatny, a vice president of Laclede Investment and senior vice president of Laclede Gas Company. Kaiser, Moulton and'Novat-ny negotiated during a period of approximately five months prior to June 12, 1970. On that date articles of limited partnership were signed by Kaiser, Moulton and Lac-lede Development Company, another subsidiary of Laclede Gas Company. The intent of the articles was “to convert and expand the existing K & M Investment Company partnership into a limited partnership by the admission of Laclede Development Company as a Limited Partner and by the re-allocation of the partners’ shares of profits and losses.” For a $2500 investment Laclede Development became a 50% partner in the project which had an appraised value in excess of $2 million. Also signed was a loan agreement between Lac-lede Investment and K & M Investment Company, the new limited partnership. The loan agreement was made a part of the articles of limited partnership by reference. The articles, however, were not made a part of the loan agreement.

Laclede Investment loaned $425,000 to K & M Investment Company. Each note contained a clause relieving the makers from personal liability and declaring the sole remedy of the holder to be foreclosure of the deed of trust.¹ The makers of the note were defendants, the general partners in K & M Investment Company. The notes were incorporated into the loan agreement by express reference.

The $425,000 loan was insufficient to pay for completion of the project. Kaiser and Moulton spent an additional $160,000 on the project but never completed it. Eventually, Roosevelt Federal Savings and Loan foreclosed. The property was sold at foreclosure for $1,850,000, rendering Laclede Investment’s second deed of trust worthless.

Laclede Investment never sued on the promissory notes themselves. It admitted that defendants were not personally liable on the notes because of the exculpatory language. Rather, plaintiff sued defendants for breach of their agreement to complete the project, claiming as damages the loss of its investment. The trial court in its conclusions of law found that Laclede Investment was entitled to recover on each of its three theories. This appeal followed judgment for plaintiff in the stipulated amount of damages.

Plaintiff’s contention that it is entitled to recover because of express breach of the loan agreement need not detain us long. While we entertain substantial doubts that the loan agreement contains any promise to complete, it makes no difference whether or not such a promise was made. The notes, which are a part of the loan agreement, provide in clear, unambiguous, and precise language the only remedy available to plaintiff in the event of breach of the loan agreement. That remedy is by way of foreclosure of the security interest and specifically eschews personal liability against the makers of the notes — defendants. There is no basis for the conclusion, made by the trial court, that some other unexpressed remedy existed for breach of the loan agreement in view of the exculpatory language of the contract between the parties.

Plaintiff advances the theory that it is not seeking recovery on the notes but instead upon the contract. If this is a distinction, it is one without a difference. The notes are an integral part of the contract. The only provision for repayment of the loan is found in the requirement that notes be executed and in the notes themselves. Without the notes there was no obligation to repay the borrowed money. They were the consideration for the loan agreement. The notes limited the remedy of plaintiff to that specifically provided therein. The trial court erred in its legal conclusion that plaintiff was entitled to recover because of an express promise to complete.

Much the same is true of plaintiffs contention, and the trial court’s conclusion, that plaintiff was entitled to recover under the theory of promissory estoppel. This conclusion was based upon promises, allegedly made prior to or contemporaneously with the execution of the loan agreement, that defendants would complete the “County Fair” project. Restatement of Contracts Sec. 90 (1932), sets forth the doctrine of promissory estoppel. It is, in essence, based upon the theory that a promise which induces action or forebearance by the prom-isee can serve as a substitute for consideration upon such action or forebearance and thereby can become enforceable as a contract. It is similar to the doctrines of unilateral contract and equitable estoppel. Plaintiff, through the use of language lifted from cases, attempts to establish its applicability to the case at bar. But we are cited to no cases, nor have we found any, which have held the doctrine applicable to promises made in the inducement of a fully integrated contract as is here sought by plaintiff. Such a holding would directly conflict with the parole evidence rule. South Side Plumbing Co. v. Tigges, 525 S.W.2d 583 (Mo.App.1975). Here the alleged promise to complete was purportedly made to induce the execution of the loan agreement. There is no contention that the loan agreement did not represent the entire agreement between the parties and nothing of record indicates some other contract existed between these parties. That agreement was fully, completely, and unambiguously set forth in writing and carried full consideration from both sides. Promissory estoppel cannot be utilized to engraft thereon a promise not included in the contract.

Furthermore, even if we were to engraft such a promise to that contract that would not change the remedy for breach of that contract. Plaintiff does not contend and the record does not even hint that such alleged promise was accompanied by any promise to waive the exculpatory provisions concerning remedy. It matters not how many promises are added to the contract expressly, impliedly, inferentially, or by es-toppel, the remedy for breach of those promises remains the same. Under that remedy plaintiff cannot recover against defendants. The trial court erred in its conclusion that plaintiff was entitled to recover against defendants on the basis of promissory estoppel.

We turn now to plaintiff’s final theory of recovery — third party beneficiary contract. This theory is based upon a provision of the limited partnership agreement between defendants and Laclede Development Corporation in which defendants promised to complete the project.²

Initially it is necessary to deal with the status of our opinion in Laclede Inv. Corp. v. Kaiser, 541 S.W.2d 330 (Mo.App.1976), the appeal from the first trial of this case. In that case we held that the plaintiff made a submissible case on its theory of a third party beneficiary contract. The pleadings as to this issue and the evidence at the two trials are substantially the same. In those circumstances the doctrine of the “law of the case” normally applies and we are precluded from reconsideration of matters determined on the prior appeal.

The “law of the case” doctrine has two facets. Where a decision by a superior court is involved a lower court is absolutely bound by that decision and lacks jurisdiction to rule contrary to that decision upon retrial or upon a second appeal. State ex rel. Curtis v. Broaddus, 238 Mo. 189, 142 S.W. 340 (1911). If the initial decision is by the same court or a lower court than the one making the second decision the doctrine normally precludes reexamination of issues decided in the original appeal. Mangold v. Bacon, 237 Mo. 496, 141 S.W. 650 (1911). There are exceptions to the latter rule. As so aptly stated in Mangold, supra:

“An appellate court is a court for the correction of errors — its own as well as others. In correcting the errors of lower courts we do not proceed on the theory we make none of our own. . . ."

“Whether from grace or right when cogent and convincing reasons appear, such as lack of harmony with other decisions and where no injustice or hardship would flow from a change, or where by inadvertence principles of law have been incorrectly declared the first time, or mistake of fact has been made, or injustice to the rights of parties would be done by adhering to the first opinion, then the exceptions to the rule have play, and it is our duty to re-examine and correct our own errors on the second appeal in the same case.” 141 S.W. l.c. 655. See also Hogan v. Kansas City Public Serv. Co., 322 Mo. 1103, 19 S.W.2d 707 (banc 1929) [1, 2]; Murphy v. Barron, 286 Mo. 390, 228 S.W. 492 (1921) (4].

Inherent in our original opinion in this case is a legal determination that Plaintiff is a third party beneficiary under the limited partnership contract. The question briefed by defendants on the first appeal was the effect of a limitation of liability contained in paragraph 15.1 of the partnership contract.³ On that appeal defendants did not brief the contention, which is critical, that paragraph 9.2 does not make plaintiff a third party beneficiary.

We believe that as to that issue our prior opinion was incorrectly decided, that our prior decision on that issue is out of harmony with other decisions, that the issue was incorrectly decided out of inadvertence arising from inadequate briefing, that adherence to the incorrect ruling will cause manifest injustice to the rights of the parties, and such adherence will create a precedent having serious and unwarranted consequences to the law of contracts. It is our conclusion that this case presents an exception to the “law of the case” doctrine and that we are therefore free to correctly decide the issue.

Third party beneficiary is the nomenclature given to one who is not privy to a contract nor to its consideration but to whom the law gives the right to maintain a cause of action for breach of contract. Stephens v. Great Southern Savings & Loan Ass’n, 421 S.W.2d 332, 335 (Mo.App.1967). Several theories for allowing the third party beneficiary to recover have been developed and rejected. Annot., 81 A.L.R. 1271, 1283 (1932). Now, the doctrine prevails “on the strength of its reasonableness and necessity, rather than upon any preconceived general theory of law.” 81 A.L.R. l.c. 1284.

Only those third parties for whose primary benefit the contracting parties intended to make the contract may maintain an action. The question of intent is paramount in any analysis of an alleged third party beneficiary situation. The intention of the parties is to be gleaned from the four corners of the contract, and if uncertain or ambiguous, from the circumstances surrounding its execution. Uhrich v. Globe Surety Co., 191 Mo.App. 111, 166 S.W. 845 (1914) [2, 3]; Dill v. Poindexter Tile Co., 451 S.W.2d 365 (Mo.App.1970) [18]. In Stephens v. Great Southern Savings & Loan Assn., 421 S.W.2d 332 (Mo.App.1967) the question of intent was addressed as follows:

“So ‘[i]t is not every promise . made by one to another from the performance of which a benefit may ensue to a third, which gives a right of action to such third person, he being neither privy to the contract nor to the consideration. The contract must be made for his benefit as its object, and he must be the party intended to be benefited.’ And the intent necessary to establish the status of a third-party beneficiary is 'not so much a desire or purpose to confer a benefit on the third person, or to advance his interests or promote his welfare, but rather an intent that the promisor assume a direct obligation to him.’” [2, 3]. (Emphasis supplied).

The contract terms must clearly express that the contracting parties intended the third party to be the beneficiary of performance of the contract and have the right to maintain an action on the contract. Uhrich v. Globe Surety Co., supra, [1];⁴ Burns v. Washington Savings, 251 Miss. 789, 171 So.2d 322 (1965) [4]; Computer Center, Inc. v. Vedapco, Inc., 320 So.2d 404 (Fla.App.1975) [5]. Though the third party beneficiary need not be named in the contract, the terms of the contract must express directly and clearly, an intent to benefit the specific party or an identifiable class of which the party asserting rights as a third party beneficiary is a member. Inasmuch as people usually contract and stipulate for themselves and not for third persons, a strong presumption arises that such was their intention, and the implication to overcome that presumption must be so strong as to amount to an express declaration. Ison v. Daniel Crisp Corp., 146 W.Va. 786, 122 S.E.2d 553 (1961) [1-3]; Martin v. Edwards, 219 Kan. 466, 548 P.2d 779 (1976) [5, 6], In other words, the court may not speculate from the language in the contract that the contracting parties wanted to make the plaintiff a third party beneficiary.

The Restatement of Contracts § 133⁵ (1932) adopted by the Missouri courts in Mertens v. MGR Inc., 507 S.W.2d 433 (Mo.App.1974) divides beneficiaries of a contract into three classes and defines each class: donee beneficiary, creditor beneficiary and incidental beneficiary. Each definition is built upon and dependent for its meaning on the other two definitions. Thus, a person is a donee beneficiary “if it appears from the terms of the promise in view of the accompanying circumstances that the purpose⁶ in obtaining the promise of all or part of the performance thereof is to make a gift to the beneficiary or to confer upon him a right against the promisor to some performance neither due nor supposed nor asserted to be due from the promisee to the beneficiary.” The person is a creditor beneficiary if he is not a donee beneficiary and “performance of the promise will satisfy an actual or supposed or asserted duty of the promisee to the beneficiary . . . .” Finally, if the person is neither a donee beneficiary nor a creditor beneficiary, he is an incidental beneficiary. The first two classes of beneficiaries may recover, but the third class may not. Stephens v. Great Southern Savings & Loan Ass’n, supra, at [4, 5]. Restatement of Contracts §§ 135, 136, 147 (1932). Comment a. to Sec. 133 states:

“A single contract may consist of a number of promises. One or more of them may require performance to the promisee; others may require performance to persons not parties to the contract. Of these latter promises, some may be of the type stated in Subsection (la), others of the type stated in subsection (lb). In other promises any benefit derived by a third person from their performance may be merely incidental.” (Emphasis supplied).

If plaintiff can recover at all, it must do so as a donee beneficiary inasmuch as there is no duty or legal obligation (actual, supposed or asserted) owing to plaintiff by Laclede Development Company which connects the beneficiary with the contract. If plaintiff is merely an incidental beneficiary it cannot recover.

The right of the donee beneficiary to recover against the promisor is based upon the expressed intent of the promisee that the third party should receive the beneficial performance as his gift. 4 Corbin on Contracts § 782 at 87. Here there is no expression in the contract terms of the Articles of Limited Partnership showing an intent by either party therein to bestow as a gift on plaintiff the promise “to complete the development contemplated by these Articles under the terms of the Construction and Disbursing Escrow Agreement.” Nothing in the partnership agreement purports to be a promise to anyone other than the parties to the agreement. Laclede Investment is not such a party.⁷

There is nothing in Sec. 9.2 of the limited partnership agreement which requires defendants to perform any promise to plaintiff. The only reference in that section to plaintiff identifies the source of the loan to the partnership and nothing in that section expressly, or even by implication, correlates the source of the loan with the promise to complete. The provision is simply a delineation of the obligations between the partners for the addition of capital to the partnership. The entire partnership agreement dealt with the interrelationship between the partnership and its members and Sec. 9.2 is only one portion of that overall contract. In Mertens v. MGR Inc., supra, we held that a much more identifiable promise to a class of persons did not under those circumstances create a third party beneficiary contract. See also Nola v. Merollis Chevrolet Kansas City, Inc., 537 S.W.2d 627 (Mo.App.1976). Plaintiff bases its contentions upon certain testimony at trial concerning the intentions of the parties. Plaintiff contends, and the trial court found, that such testimony established the intent to create a third party beneficiary contract. Such testimony might be considered if we were dealing with an ambiguous provision. We are not. There is nothing in Sec. 9.2 which provides that defendants had undertaken some performance in respect to plaintiff.

Nor are we able to find the necessary specific intent required either in the contract or in the testimony at trial, even if we could consider the latter. At most the evidence indicates a generalized intention to advance plaintiff’s interest or to promote its welfare. But that testimony does not indicate an intent by defendants to assume a direct obligation to plaintiff in the partnership agreement.

The right of the third party beneficiary to maintain an action on the contract must spring from the terms of the contract itself. Burns v. Washington Savings, supra, [3, 4]. The necessity and wisdom of such a requirement is well illustrated by this case. By express, unambiguous language plaintiff relinquished any rights it had against defendants for loss sustained as a result of its loan. If it was the intention of the parties to obviate that relinquishment by Sec. 9.2 of a different contract between different parties covering a different relationship they could have said so directly and clearly. That they did not forces the conclusion that they did not intend to. If any conclusion can be drawn it must be that by incorporating by reference the loan agreement into the partnership contract the parties to the partnership agreement were aware of, and reaffirmed, the absence of personal liability of defendants to plaintiff.

We have alluded to the serious and unwarranted precedent involved in allowing plaintiff to recover in this case. If plaintiff, a financing corporation, is a third party beneficiary to this partnership provision, so presumably is the first mortgage lender, the general contractor, and every subcontractor, materialman and mechanic whose lien security has been damaged by failure to complete the project. Non-recourse financing is not an uncommon practice. It is a useful commercial tool. We should not place in the path of such financing the substantial danger that no matter how explicitly the parties to the financing express their, intention, the courts will find that some other contract between different parties will supercede the express provisions by implication. Plaintiff made its bargain with defendants. It has lost money under that bargain. That fact should not allow plaintiff or the courts to change the bargain. The trial court erred in its conclusion allowing recovery by plaintiff on the theory of a third party beneficiary contract.

Judgment reversed with directions to enter judgment for defendants.

PUDLOWSKI, J., concurs. SNYDER, P. J., dissents in separate opinion.

1 . “No personal liability shall be asserted or be enforceable against the maker, it being intended that the sole remedy of the holder hereof be by the foreclosure of the Deed of Trust and Security Agreement by virtue of which the holder of this note may foreclose, possess, receive or recapture any or all of the property described in said instruments as being security for this indebtedness."

2 . “9.1. The loan agreement between Laclede Investment Corporation and the partnership attached hereto as Exhibit ‘2’ is hereby made a part of this agreement.”

“9.2. The General Partners agree to complete the development contemplated by these Articles under the terms of the Construction and Disbursing Escrow Agreement by and between K & M INVESTMENT CO., Guaranty Land Title Company, Kaiser-Moulton, Inc. and Roosevelt Federal Savings and Loan Association. The General Partners agree that the development shall be completed as rapidly as is practical. If any monies are required to complete the project over and above the principal amount stated in the loan agreement between Laclede Investment Corporation and K & M INVESTMENT CO., attached as Exhibit “2”, such monies will be furnished by the General Partners in the form of additional capital contributions.”

3 . “15.1. The General Partners shall not be liable to the Limited Partner for any mistake of law or fact, or of both law and fact, or for errors of judgment or for any loss of the Limited Partnership unless occasioned by actual fraud or gross neglect on the part of the General Partner or Partners.”

4 . In La Salle Iron Works Inc. v. Largen, 410 S.W.2d 87 (Mo. banc 1966) the court distinguished Uhrich, supra, on the basis of the language in the bonds involved. It further stated that to the extent the opinion of Uhrich held contrary to that of La Salle it was no longer to be followed. Our review of the two cases does not reveal any inconsistency between the legal theories advanced in the two cases, only a difference in application of those theories to the language of the two bonds. That Uhrich still has validity for the legal principles therein set forth is recognized by the Supreme Court through its citing of the case in Silton v. Kansas City, 446 S.W.2d 129 (Mo.1969) [1], Both La Salle and Uhrich dealt with construction bonds containing clear obligations to pay mechanics and materialmen. The question was whether such obligations were enforceable by those persons. Here, of course, the partnership agreement imposes no obligation to pay anyone.

5 . § 133. DEFINITION OF DONEE BENEFICIARY, CREDITOR BENEFICIARY, INCIDENTAL BENEFICIARY.

(1)Where performance of a promise in a contract will benefit a person other than the promisee, that person is, except as stated in Subsection (3):

(a)a donee beneficiary if it appears from the terms of the promise in view of the accompanying circumstances that the purpose of the promisee in obtaining the promise of all or part of the performance thereof is to make a gift to the beneficiary or to confer upon him a right against the promisor to some performance neither due nor supposed or asserted to be due from the promisee to the beneficiary;

(b) a creditor beneficiary if no purpose to make a gift appears from the terms of the promise in view of the accompanying circumstances and performance of the promise will satisfy an actual or supposed or asserted duty of the promisee to the beneficiary, or a right of the beneficiary against the promisee which has been barred by the Statute of Limitations or by a discharge in bankruptcy, or which is unenforceable because of the Statute of Frauds;

(c) an incidental beneficiary if neither the facts stated in Clause (a) nor those stated in Clause (b) exist.

(2) Such a promise as is described in Subsection (la) is a gift promise. Such a promise as is described in Subsection (lb) is a promise to discharge the promisee’s duty.

(3) Where it appears from the terms of the promise in view of the accompanying circumstances that the purpose of the promisee is to benefit a beneficiary under a trust and the promise is to render performance to the trustee,-the trustee, and not the beneficiary under the trust, is a beneficiary within the meaning of this Section.

6 . The Restatement uses the term “purpose” of the contract rather than “intent.” See quotation on p. 9, supra, from Stephens v. Great Southern Savings & Loan Ass’n, 421 S.W.2d l.c. 335, on the intent requirement. Whether delineated as “intent” or “purpose” the necessary element is a contractual undertaking by the promisor to assume a direct obligation to the beneficiary.

7 . Although plaintiff and Laclede Development may be considered siblings, having been created by the same parent, they are not Siamese twins. Each is a separate legal entity and their relationship does not create either rights or responsibilities in this case different from those they would have if unrelated.