Bader v. Chicago Mill & Lumber Co.

• Decision Date: 05 November 1908
• Citation: 134 Mo. App. 135,113 S.W. 1154
• Parties: BADER v. CHICAGO MILL & LUMBER CO.
• Court: Missouri Court of Appeals

113 S.W. 1154

134 Mo. App. 135

BADER v. CHICAGO MILL & LUMBER CO.

St. Louis Court of Appeals. Missouri.

November 5, 1908.

Rehearing Denied December 1, 1908.

1. APPEAL AND ERROR (§ 1022) — REVIEW — FINDINGS OF REFEREE.

Where a reference and referee are agreed on by the parties to a law action the referee's findings of the facts approved by the trial court are conclusive on appeal, if supported by substantial evidence.

2. APPEAL AND ERROR (§ 848) — REVIEW — FINDINGS OF REEFREE.

If a referee has erred in his conclusions of law, the Court of Appeals may set aside the erroneous conclusions, and apply the law as found by it to the facts found by the referee.

3. CONTRACTS (§ 170)—CONSTRUCTION—CONSTRUCTION GIVEN BY PARTIES.

The rule that a practical construction of a contract by the parties themselves is a proper guide to its meaning applies only where the contract is ambiguous or obscure in its terms, or where there is some uncertainty as to the objects or subject-matter.

4. CONTRACTS (§ 194)—CONSTRUCTION.

A contract provided that, to pay certain debts due to first party as well as for debts due a certain bank for which first party was indorser, second party empowered first party to collect and apply toward payment of the debts due first party and the bank the proceeds of certain timber belonging to second party, also that, after a claim of a mill company against second party had been paid, the proceeds from timber from certain land should be subject to first party's order until the debts mentioned in the contract should be paid. Held, that the proceeds of the timber, after paying the debt to the mill company, was to be applied in payment of the specific debts mentioned and described and then due, and not to debts contracted after the execution of the contract.

5. ESTOPPEL (§ 55)—MEANS OF KNOWLEDGE OPEN TO BOTH PARTIES.

Where the means of knowledge are equally open to both parties, silence or some act done does not estop the party doing the act or remaining silent; and hence, where a contract providing for the application of proceeds of lumber belonging to second party to payment of specified debts due first party and a bank after liquidation of defendant's claim was in possession of first party's son who continued the business after his father's death, the fact that defendant's agent told the son that the contract was all right, that he (the agent) would stand to it, and anything the son sold second party was all right, would not estop defendant from denying that the subsequent sales by first party's son were covered by the contract, and to be paid for by the proceeds of the lumber, but it could contend for a true interpretation of the contract.

Appeal from Circuit Court, Pemiscot County; Henry C. Riley, Judge.

Action by J. W. Bader, administrator, against the Chicago Mill & Lumber Company. Judgment for plaintiff on the report of a referee, and defendant appeals. Reversed and rendered.

Faris & Oliver, for appellant. C. G. Shepard and S. J. Corbett, for respondent.

BLAND, P. J.

The action is bottomed on the following contract: "This agreement, made and entered into this thirty-first day of July, 1900, by and between W. H. Huffman, of Pemiscot county, in the state of Missouri, party of the first part, and J. W. Thompson, of Pemiscot county, Missouri, party of the second part, witnesseth: That the said party of the second part, in consideration of the covenants and agreements herein contained, and in consideration of and in order to pay certain debts due and owing to first party, as well as for debts due Pemiscot County Bank for which said first party is indorser, the second party agrees to and with the said first party, that said first party shall be empowered to collect and shall collect and apply toward the payment of the debts due to the said first party and to Pemiscot County Bank the proceeds of all timber which I have bought from Joe Little, Frank Avis, Scott McDonald, also the timber on forty acres land bought of John Sullivan, near Kinfolks Ridge, and that which is on my land, and all the timber now on the bank of river, all on Island 16 and under contract to Chicago Mill & Lumber Company, and any and all timber which I may come in possession of, excepting a claim of Chicago Mill & Lumber Company of $303, which is to be paid first out of proceeds of said timber; all other proceeds of timber shall be subject to order of said first party until the debts above mentioned are paid. This agreement shall not be revoked or rescinded by either of the parties hereto, until the whole of the said indebtedness owing from the said second party to the first party and Pemiscot County Bank shall have been paid and discharged in full; provided, that the same may be revoked and rescinded if both of said parties hereto agree to revoke and rescind the same. This agreement shall be taken and considered by the Chicago Mill & Lumber Company as an order for the payment of said sum to the said first party. This agreement may be accepted by the said Chicago Mill & Lumber Company by their indorsement, but the same shall be as valid and binding upon the parties hereto as though indorsed by said party above named." The defendant accepted the provisions of the contract, and from time to time paid money to W. H. Huffman in recognition of its acceptance.

The facts and circumstances leading up to and existing at the time the contract was made, succinctly stated, are as follows: The mill company had a contract with Thompson for the delivery of timber on the banks of the Mississippi river, in Pemiscot county, some of which had been delivered at the time the contract sued on was entered into. Some of the timber Thompson agreed to deliver was to be cut from his own land, the balance from the lands of the parties named in the contract, which timber the mill company had purchased for Thompson. Huffman was engaged in a general mercantile business at Caruthersville, and Thompson had become indebted to him in the sums named in the contract. After the execution of the contract, Huffman furnished Thompson such supplies on credit as were necessary to enable him to continue the delivery of logs on his contract with defendant. Huffman died January 1, 1901, at which date Thompson owed him the sum of $358.68 for supplies furnished after the execution of the contract. After Huffman's death, his son Carl continued the mercantile business in his father's name, and continued to extend credit to Thompson until the amount, including the notes mentioned in the contract, amounted to $1,311.19, exclusive of credits by payments made by the mill company. The action is to recover this balance. By agreement of parties the cause was referred to B. A. McKay, Esq., as referee. McKay qualified, heard the evidence, and made the following report to the court: "I, the undersigned, duly appointed by the Pemiscot circuit court as referee to hear and try all the issues in said cause, a certified copy of which appointment is hereto annexed, do hereby report my proceedings as such referee: I did on the 16th day of May, 1906, take the oath prescribed by law, which said oath is hereto annexed, and herewith returned. And on the 17th day of May, 1906, said plaintiff appearing by S. J. Corbett and C. G. Shepard, his attorneys, and said defendant appearing by Faris and...