Meco Systems2/14/2001
uing that the Main Contract was not "enforceable" until DBE released the financing contingency on September 29, 1993, MECO confuses contract obligation with contract performance. See Cohen, 952 S.W.2d at 326; Highland, 650 S.W.2d at 671. The Main Contract is akin to the contracts at issue in Cohen and Highland, which is to say it is one of bilateral terms, mutual promises for mutual performances. MECO promised to do "site preparation, parking lot paving, parking lot lighting, and construction of the Theater Building, complete." DBE made the concurrent promise to pay MECO the "Costs of the Work" as described in the Main Contract. "A return promise suffices as consideration for a promise." Cohen, 952 S.W.2d at 326. After execution of the Main Contract on August 25, 1993, the parties were obligated to each other to make the performances promised and neither could withdraw with impunity. See Cohen, 952 S.W.2d at 326; Highland, 650 S.W.2d at 671. The performances of theater construction by MECO and payments by DBE, promised in the Main Contract, were not immediate, but deferred. That, however, does not make the contract unenforceable as MECO contends. Deferring performances via a condition precedent does not affect the validity of the undertaking as a consummated and already enforceable contract. Cohen, 952 S.W.2d at 326; Highland, 650 S.W.2d at 672. Based on Cohen and Highland, we conclude that the condition here (DBE receiving financing) did not affect the validity of the Main Contract as an allocation of rights and obligations.
Having found that the Main Contract was a consummated and enforceable contract when executed on August 25, 1993, the question remains: Was the trial court compelled to find, as a matter of law, that the ten-day letter agreements formed contracts independent of the Main Contract, as MECO apparently contends? We answer, "No."
Generally, contracts may be modified as to particular provisions or have new terms engrafted thereon, yet stand as to the residue of the original agreement. Shutt v. Chris Kaye Plastics Corp., 962 S.W.2d 887, 890 (Mo.banc 1998); Cranor v. Jones Co., 921 S.W.2d 76, 81 (Mo.App. 1996). Modification of a contract constitutes the making of a new contract which, like any other agreement, is enforceable only if based upon mutual assent and supported by consideration. Goldstein and Price v. Tonkin & Mondl, L.C., 974 S.W.2d 543, 551 (Mo.App. 1998). Substitution of a modified contract for an unperformed old contract is sufficient consideration for the newly formed contract, provided the substituted agreement contains a change of obligation for each party. Barr v. Snyder, 294 S.W.2d 4, 9 (Mo. 1956).
A "meeting of the minds," or "mutual assent," of all parties is essential to the formation of any contract, Karsch v. Carr, 807 S.W.2d 96, 99 (Mo.App. 1990), including one formed by modification. Goldstein and Price, 974 S.W.2d at 551. Courts look to the parties' objective manifestations of intent to determine whether there was a "meeting of the minds." (Emphasis supplied). McDaniel v. Park Place Care Center, Inc., 918 S.W.2d 820, 827 (Mo.App. 1996). "A person's subjective intent is irrelevant." Id.
Necessarily, we apply the foregoing principles in deciding if MECO and DBE, by their letter agreements, formed three independent and separate contracts or modified the Main Contract three times. Having done so, we find ample evidence to support the trial court's implicit finding that, by these ten-day letters, the parties mutually assented to modifications of the Main Contact, not three separate contracts. Such evidence is found in the letter agreements which (a) referenced MECO's "time schedules," (b) contained directives to "proceed with gradin
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