American Copying Co. v. Muleski

• Court: Court of Appeal of Missouri (US)
• Citation: 122 S.W. 384,138 Mo. App. 419
• Parties: AMERICAN COPYING CO. v. MULESKI.
• Decision Date: 01 November 1909

122 S.W. 384 138 Mo. App. 419 AMERICAN COPYING CO.
v.
MULESKI. Kansas City Court of Appeals. Missouri. November 1, 1909.

1. EVIDENCE (§ 441) — PAROL EVIDENCE AFFECTING WRITTEN INSTRUMENT.

Where no fraud is charged, and no reason given why a writing does not represent the agreement of the parties, it cannot be affected by a parol contemporaneous agreement.

2. CONTRACTS (§ 42) — "EXECUTED" — DELIVERY.

Though a contract is signed by a party, it is not "executed" until delivered.

3. PLEADING (§ 291) — VERIFICATION — DENIAL OF EXECUTION OF CONTRACT.

In an action on a contract signed by a party, but not delivered, its execution must be denied under oath.

4. CONTRACTS (§ 342) — ACTIONS — DEFENSES — ILLEGALITY — PLEADING.

In an action on a contract the defense of illegality must be specially set up.

5. APPEAL AND ERROR (§ 959) — DISCRETION OF COURT — AMENDMENT DURING TRIAL.

Granting leave to amend pleadings during the trial is largely in the trial court's discretion, and its ruling will not be disturbed, unless an abuse of discretion is apparent.

Appeal from Circuit Court, Buchanan County; C. A. Mosman, Judge.

Action by the American Copying Company against Felix Muleski. Judgment for plaintiff, and defendant appeals. Affirmed.

Mytton & Parkinson, for appellant. J. B. Shackelford and John A. Connett, for respondent.

ELLISON, J.

Plaintiff's action is for damages for breach of a written contract. The case was referred to a referee, whose findings for plaintiff were approved by the trial court, and judgment accordingly entered.

It appears that defendant, who is a retail butcher in St. Joseph, signed a written instrument whereby he agreed to purchase of plaintiff certain advertising stamps advertising defendant's business, which were to be given out by defendant to his customers, one for each 10 cents' worth purchased, for which defendant was to pay plaintiff 30 cents per hundred stamps so obtained of plaintiff and given out by defendant. It was further agreed that plaintiff would consign to some merchant in St. Joseph "one Cleveland special automobile." The writing then proceeded as follows: "For the compensation received by you from us for said stamps you are to print our name and business on your Automobile Stamp Directory for this town and appoint some person or firm in this town to give to each of our customers for each filled Automobile Stamp Directory containing one hundred of such purchase stamps a ticket, giving to the holder an undivided interest in said automobile upon the termination of...