Frizelle v. Kaw Valley Paint & Oil Co.

Decision Date08 February 1887
Citation24 Mo.App. 529
PartiesCHARLES S. FRIZELLE, Respondent, v. KAW VALLEY PAINT AND OIL COMPANY, Appellant.
CourtMissouri Court of Appeals

APPEAL from Jackson Circuit Court, HON. JAMES H. SLOVER, Judge.

Affirmed.

Statement of case by the court.

This was an action, on account, for a balance of three hundred and ninety-three and thirty-seven one hundredths dollars.

The plaintiff, under a verbal contract with the defendant, as a traveling salesman, traveled for the defendant in Texas for the months of January, February, March, April, May, June, July, and August, 1885. The contract began and took effect on January 1, but the plaintiff did not begin work until the fifth or sixth of that month. From the time of beginning work until September 1, at which time he quit work, the plaintiff was traveling for the defendant. During the time mentioned the defendant paid to the plaintiff various sums of money amounting in the aggregate to $1,803.48. For the entire sum so paid to him the plaintiff accounted to the defendant's satisfaction, except in the respect to be now mentioned.

The defendant, under the agreement with plaintiff, was to pay his traveling expenses. The plaintiff claimed a credit for the sum of $1,396.85 paid out by him for traveling expenses. Included in said sum the plaintiff admitted there were these three items: three dollars per week for washing while traveling, fifty dollars contributed to a lumbermen's convention in San Antonio, and fifteen dollars for entertaining customers.

The sole question in the case was, was the plaintiff entitled to credit for said three items. The defendant computed the first item to amount to one hundred and eight dollars, on the basis of three dollars per week for thirty-six weeks. The aggregate amount of the three items according to such computation was one hundred and seventy-three dollars.

The defendant asked, but the court refused to instruct the jury that the plaintiff was not entitled to credit for said items.

The court submitted the question to the jury as to whether a uniform custom prevailed among the business community to charge and allow for such expenditures as those included in said items as traveling expenses.

The amount claimed by plaintiff was $393.37. The jury found in favor of plaintiff a verdict for the sum of two hundred and twenty-five dollars.BRYANT & HOLMES, for the appellant.

I. The real question in this case arises on the action of the court in reference to the fourth instruction asked by the defendant.

II. The contract sued on being unambiguous, it was not competent to control its meaning by evidence of any custom, however general. But, in this case, the evidence was wholly insufficient to establish any custom whatever. Neither laundry bills, nor such expenditures as entertaining customers and attending a convention of lumbermen can be allowed as traveling expenses. It is very difficult to understand what connection a lumbermen's convention can have with the paint and oil business in which defendant was engaged. There was no evidence to warrant the modification of the fourth instruction, and the court clearly erred in not instructing the jury as asked by defendant, and its judgment should be reversed. Kimball v. Brauner, 47 Mo. 398. [The fourth instruction, as asked, was as follows: “The court instructs the jury that under the contract sued on, plaintiff is not entitled to credit for money expended in attending a lumbermen's convention, nor in entertaining customers, nor for his washing.” And, as modified, was as follows: “The court instructs the jury that under the contract sued on, plaintiff is not entitled to credit for money expended in attending a lumbermen's convention, nor in entertaining customers, nor for his washing, unless you should believe from the evidence that a general uniform custom prevails among the business community to charge and allow for such expenditures as traveling expenses, and the burden is on the plaintiff to establish such custom by a preponderence of evidence.”]

LATHROP & SMITH, for the respondent.

I. The court did not err in refusing defendant's instruction number four. There was no such issue made or tendered by the pleadings. If there had been such an issue, the instructions assumed the truth of a controverted fact which belongs to the jury to decide. Gordon v. Madden, 82 Mo. 193-4; Compton v. Johnson, 19 Mo. App. 88, 92, 93. There was evidence to warrant the modification. The contract was ambiguous in this, that it used an ordinary phrase in a peculiar sense. It was, therefore, competent to interpret the meaning of the phrase by men familiar with it in the sense used here. This was proper outside of any question of custom. The distinction is that between interpreting and construing a contract. Parsons on Cont. [6 Ed.] 491, note a; Eaton v. Smith, 20 Pick. (Mass.) 150; Brown v. Orland, 36 Maine, 370; Burnham v. Allen, 1 Gray (Mass.) 406.

II. If, however, defendant's instruction numbered four, as modified and given, were error, it was a harmless error. The verdict returned is the exact verdict to which plaint...

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