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Karla Rose Gutierrez

ID No. 11287780
Section: G04
Room: 401

US Contract Law
Professor Jack W. Van Doren

Case: Embry v. Hargadine, McKittrick Dry Goods Co., 127 Mo.App. 383, 105 S.W. 777
(Mo. App. 1907)

Facts: Petitioner Embry was an employee of Defendant Hargadine, McKittrick Dry Goods. He was
paid $2,000 per year and was responsible for the sample department. A written employment contract
between the parties expired on December 15, 1903. Eight days from the said expiry of the contract the
Embry demanded a contract for another year, and demanded that he would stop work all at once
unless hes given one. The employer, Hargadines president, McKittrick, told Embry Go ahead, youre
all right. Get your men out and dont let that worry you. Embry remained with the company until he was
fired on February 15th. McKittrick denied having told Embry not to worry about his employment
contract. At trial the court gave a jury instruction regarding contract formation and refused Embrys
proposed instructions. The jury was instructed that it was necessary for both parties to have had a
subjective intent to contract or there would be no contract. The jury returned a verdict in favor of the
defendant and the petitioner appealed based on the jury instruction.

Issue: Can an enforceable contract be formed without reference to the subjective intentions of
either party (Did the statement of McKittrick constitute a valid contract for another year)?

Holding and Rule: Yes. A contract may be formed without reference to the subjective intentions of
either party. If a man conducts himself such that a reasonable person would believe that he was
assenting to the terms proposed by another party, and that other party upon that belief enters into the
contract, that man would be equally bound whether or not he had actual subjective intent. The inner
intention of parties to a conversation alleged to create a contract cannot either make a contract of what
transpired, or prevent one for arising, if the words used were sufficient to constitute a contract. The
intention in contracts is embodied in the words, which the parties used in both written in oral contracts.
Though McKittrick may not have intended to employ Embry by what transpired between them, if what
McKittrick said would have been taken by a reasonable man to be an employment contract, and P
understood it as such, it constituted a valid contract of employment for the ensuing year. McKittricks
subjective intent was not relevant.

Opinion: I do not agree with this ruling. In the circumstances, can defendants statement be
reasonably be viewed as an offer? No. There was an immediate threat to stop work from Embry. There
may have been a misapplication of a certain concept in law. McKittricks statement was, Go ahead,

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youre all right. Get your men out and dont let that worry you. In the case, it was said that the
reasonable man test was used. This hypothetical person referred to as the reasonable/prudent man
exercises average care, skill, and judgment in conduct that society requires of its members for the
protection of their own and of others' interests. This serves as a comparative standard for determining
liability. This test, for me, correctly pertains to McKrittick and how we was a reasonable person in
dodging a threat of work stoppage with a statement that Embry misconstrued as a contract.

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