Zerr v. Klug

• Decision Date: 11 December 1906
• Citation: 121 Mo. App. 286,98 S.W. 822
• Parties: ZERR v. KLUG.
• Court: Missouri Court of Appeals

98 S.W. 822

121 Mo. App. 286

ZERR v. KLUG.

St. Louis Court of Appeals. Missouri.

December 11, 1906.

1. EVIDENCE — PAROL EVIDENCE — AMBIGUITY OF WRITING.

An instrument whereby a party acknowledged the receipt of a sum of money and agreed to wait for entire settlement till a date named "by note" was ambiguous, so that extrinsic testimony was admissible to show its meaning.

2. TRIAL—INSTRUCTIONS—RIGHT TO OBJECT— ESTOPPEL.

Where defendant's objection to the admission of evidence for plaintiff as to the construction of a written instrument, on the ground that it must be interpreted by the court, was sustained, he cannot complain of an instruction interpreting the instrument according to the contention of the plaintiff.

3. CONTRACTS—VALIDITY—TIME FOR PERFORMANCE —EXTENSION—CONSIDERATION.

After a seller has fully executed his contract, his agreement to extend the time for payment and to accept a note of the buyer at a future date in settlement was without consideration and void.

Appeal from St. Louis Circuit Court; Walter B. Douglas, Judge.

Action by John Zerr against Adolph Klug. From an order granting a new trial after verdict for plaintiff, he appeals. Reversed, with directions to enter judgment on verdict.

Appellant instituted an attachment against respondent to recover a balance of $900 alleged to be due on the purchase price of the good will of a hotel and restaurant, and of a stock of groceries, liquors, bed and table linen, glassware, and other utensils. On March 7, 1904, respondent sold the good will of the hotel and restaurant for $2,000 and the other property described at prices which, when an inventory was taken, amounted to $1,792. The good will was paid for in full, and all but $900 was paid at different times on the price of the property. These payments ranged from March 4, 1904, to April 12th, when the last one was made. It is not denied the balance claimed was owing, the dispute between the parties being as to when it was to be paid. Appellant contends the whole purchase price was to be paid on delivery of the property, whereas respondent says only $1,000 was to be paid down and the balance at the close of the Louisiana Purchase Exposition, or World's Fair, December 1, 1904. The ground of attachment was failure to pay, as agreed, the price of the goods on delivery. A plea in abatement was filed and the issue tried, the trial resulting in a verdict for appellant, sustaining the attachment. Subsequently a new trial was granted, on motion of respondent, for supposed error in one of the instructions given by the court on its own motion. This appeal was prosecuted from the order granting the new trial on the plea in abatement. Both the parties are Germans and not able to express themselves with precision in our language. Klug did not speak English. There is no material discrepancy in the testimony regarding the transaction in controversy, except as to the time of payment. Appellant gave testimony going to show the entire price was to be paid on delivery of the property, and respondent testified appellant was to wait until the close of the World's Fair for payment. Some confusion was introduced into the case by the following receipt taken on April 12th, when the last payment was made: "Received of Adolph Klug $500 five hundred 00-100 dollars. At the same time I agree to wait for the entire settlement till Oktober 1st, 1904, by note. St. Louis, April 12th, 1904. John Zerr." Respondent testified that though he had paid all he was to until the close of the World's Fair, appellant pestered him for money and finally respondent agreed, on April 12th, to make a further payment of $500 if appellant would agree to make no more demands until October 1st, when another payment of $500 would be made. In this conversation respondent said he did not know whether he would be able to pay cash on October 1st, as the World's Fair would not close until December 1st, but appellant said, if respondent would give a note on October 1st, it would do, and, on this understanding, respondent wrote in the receipt the words "by note," and appellant signed the receipt. Portions of the testimony of appellant show his understanding of the arrangement of April 12th, or at least the version of it he would have given if permitted to testify in full, was that he was demanding the entire amount due on the purchase price on said date, and respondent claimed to be unable to raise it; that appellant could negotiate respondent's note to the Anheuser-Busch Brewing Association and thereby get cash to go into business, as he desired to do; that, in view of these facts, he (Klug) agreed to execute his note for the balance, said note to fall due October 1st, and appellant would take it and negotiate it for cash. Klug gave his version of the arrangement of April 12th without objection from appellant's counsel, but, when Zerr was asked to make a statement regarding it, Klug's counsel objected on the ground the receipt spoke for itself, must be interpreted by the court and interpreted to mean the note was to be given on October 1st. This objection was sustained, and Zerr not permitted to make a full explanation, though, as stated, the evidence indicates plainly enough what his testimony would have been.

But one instruction was given for appellant, which was, if the jury found from the...