Ogilvie v. Ogilvie

487 S.W.2d 40, 1972 Mo. App. LEXIS 705

• Court: Missouri Court of Appeals
• Decided: October 6, 1972
• Docket: 34298
• Status: Published

Opinions

CLEMENS, Judge.

The sole issue here is whether defendant-appellant Bertha May Welland’s promise to “aid and assist” co-defendant Byron Ogilvie in paying his promissory note, payable to plaintiff Mary Ogilvie, is so vague and uncertain a promise as to be unenforceable against her. We hold it is and reverse the trial court’s $3,000 judgment against defendant-appellant Bertha May Welland.

Before Mary Ogilvie filed this action against Byron Ogilvie and Bertha May Welland the Ogilvies had been divorced. In compliance with their marriage settlement Byron executed a $3,000 promissory note payable to Mary. At that time Mary believed she had a cause of action against Bertha for alienating Byron’s affections. Mary and Bertha executed a separate agreement which is the basis of this suit. Mary thereby released Bertha from liability for alienation of affections and Bertha agreed “she will aid and assist Byron Ogil-vie in the payment of [his $3,000 promissory note].”

Upon default in payment Mary sued Byron on the promissory note and Bertha on her promise to “aid and assist” Byron in making payment. Judgment went against both defendants in the court-tried case. On appeal Byron does not challenge the judgment against him, but Bertha makes the congruent contentions that (1) her promise to “aid and assist” in paying Byron’s note is too indefinite and uncertain to constitute an enforceable contract and (2) the language fails short of making Mary a guarantor of Byron’s note. We agree.

It is fundamental law that for an agreement to be binding it must be definite and certain. Bay v. Bedwell, Mo.App., 21 S.W.2d 203 [1-3]. It must be sufficiently definite to enable the court to determine its exact meaning and to definitely measure the extent of the promisor’s liability. Ben-gimina v. Allen, Mo.App., 375 S.W.2d 199 [3, 4],

Here we cannot determine the nature or amount of aid and assitance required from Bertha. Is she obligated to pay the entire amount? One-half? One-third? The agreement does not say. To hold Bertha responsible for a breach of contract, we must be able to ascertain the amount of damages Mary is entitled to receive from Bertha. This we cannot do. Shofler v. Jordan, Mo.App., 284 S.W.2d 612 [7, 8].

Nor can we accept Mary’s contention that Bertha is liable as a guarantor of Byron’s note. Her cited cases, such as Sebastian County Coal and Mining Company v. Mayer, 310 Mo. 104, 274 S.W. 770 [5] and Zoglin v. Layland, Mo.App., 328 S. W.2d 718 [2-5], were based on either a clear acknowledgment of responsibility for performance or actually used a form of the word “guaranty.” The words “aid and assist in payment” cannot be so interpreted. The trial court erred in rendering judgment against Bertha May Welland.

The judgment against Byron Ogilvie is affirmed and the judgment against Bertha May Welland is reversed.

BRADY, C. J., concurs. KELLY, J., dissenting in separate opinion.