Bauer v. Weber Implement Company
| Citation | 129 S.W. 59,148 Mo.App. 652 |
| Parties | EMILE W. BAUER, Respondent, v. WEBER IMPLEMENT COMPANY, Appellant |
| Decision Date | 31 May 1910 |
| Court | Missouri Court of Appeals |
Appeal from St. Francois Circuit Court.--Hon. Chas. A. Killian Judge.
Judgment affirmed.
B. H Boyer and J. A. Boughty for appellants.
(1) A contract must be stated with reasonable certainty or it will be void. And if memorandum is incomplete as to any essential part, parol evidence cannot be received to supply such omission. Ringer v. Holtzelaw, 112 Mo. 523; Dunham v. Hartman, 153 Mo. 629; Buckman v. Dry Goods Co., 91 Mo.App. 463, and cases cited. And when parol evidence is necessary to complete a written memorandum or contract it falls within the Statute of Frauds. King v. Wood, 7 Mo. 390; Whaley v. Hinchman, 22 Mo.App. l. c. 486; Bolck & Snyder v. Crowther, etc., 74 Mo.App. 483, and cases cited. (2) The Statute of Frauds is properly invoked as a defense under a plea of the general issue by timely objection to the introduction of the contract and of the parol evidence offered to supply the same. Hackett v. Watts, 138 Mo. 511; Dunn v McClintock, 64 Mo.App. 196; Boyd v. Paul, 125 Mo. 9; Scharff v. Klein, 29 Mo.App. 551, and cases cited. In the case at bar the objection made was timely and specific. See transcript, pp. 39 and 40. (3) The court erred in excluding testimony offered by defendant tending to show fraud in the procurement of the contract sued on in this case. It was competent for defendant to show fraud in procuring the contract even had it not been specifically pleaded. Stone v. Barrett, 34 Mo.App. 15; Auction Co. v. Mason, 16 Mo.App. 473; Young v. Glasscock, 79 Mo. 574; Greenway v. Jones, 34 Mo. 326. (4) The testimony offered by defendant and rejected by the court tending to show that long after the alleged acquisition of the personal property by plaintiff mentioned in the memorandum plaintiff worked for witness J. D. Counts in sawing lumber with that very machinery, and received from said Counts his wages and receipted therefor, was not only competent but very material as tending to show his recognition of title in said Counts, and was improperly excluded as embraced in a compromise arrangement. The statute relative to the inadmissibility to the matter made the subject of a compromise proposition has no application to the facts in hand. Sec. 751, R. S. 1899; Emmons v. Gordon, 125 Mo. l. c. 646; Burnham, Hanna, Munger & Co. v. Blank, 49 Mo.App. 62; Book v. Railroad, 72 Mo.App. 78. (5) The proposition is too well settled to need citation that a contract to be valid must be mutual and binding on both parties thereto and must be based upon a valuable consideration. (6) The parol evidence rule does not apply in an action to cancel an instrument for fraud. And parol evidence is admissible to show that the signature of a party was procured to a written instrument by fraud. 7 Current Law, p. 1825, note 73; Mining Co. v. Webster, 193 Mo. 364. (7) The possession by defendant of the engine in dispute was prima facie evidence of its ownership thereof, and before plaintiff can recover he must show some general or special property in the engine, and the right of immediate and exclusive possession. Groves v. Parker, 38 Mo. 160; Garlside v. Nixon, 43 Mo. 139; Lisenby v. Phelps, 71 Mo. 522; Hardware Co. v. Hdw. Co., 75 Mo.App. 522; Westby v. Milligan, 89 Mo.App. 294; Bank v. Snyder, 85 Mo.App. 82. Instruction No. 5a, offered and asked by defendant was a proper declaration of the law and should have been given. (8) Instructions 8 and 9 given on behalf of plaintiff over the objections and exceptions of the defendant made and saved at the time were improper and highly prejudicial as constituting a virtual direction on the part of the court to the jury to find for the plaintiff. Neither of said instructions should have been given. (9) The court should have sustained defendant's application set up in its answer to require plaintiff to make J. D. Counts a party defendant to this suit. Sec. 544, R. S. 1899. The non-joinder of necessary parties defendant not appearing from the face of the petition, the objection was properly raised by answer. Sec. 598, R. S. 1899; Turner v. Lords, 92 Mo. 113; Lencke v. Tredway, 45 Mo.App. 507; Dannaway v. O'Rielly, 102 Mo.App. 718; Mills v. Carthage, 31 Mo.App. 143.
B. H. Marbury and Edward A. Rozier for respondent.
(1) The contract between Bauer and Counts was a valid contract and having been fully executed by both parties, cannot now be impeached. (a) Any appreciable consideration is sufficient to support a contract of this character. Wallan v. Figone, 107 Mo.App. 362; Green v. Higham, 161 Mo. 333; Anderson v. Gaines, 156 Mo. 664; Forbes v. Railroad, 107 Mo.App. 661; Brown v. Cory, 74 Mo.App. 466. (b) A party who contracts to deliver a certain thing will not be relieved of liability, even if at the time of the promise he did not have the thing promised; hence it must follow that although he does not at the time of the promise have the thing promised, yet he has fully performed his contract if he obtains it and delivers it according to the terms of his contract. 1 Story on Contracts (4 Ed.), par. 463. (c) While the title may not have been perfect when the suit was commenced, specific performance may be decreed if the title be perfected before judgment. Isaacs v. Skrainka, 95 Mo. 517; Luckett v. Williamson, 37 Mo. 338; Scannell v. Soda Fountain Co., 44 Mo.App. 78; Scannell v. Soda Fountain Co., 161 Mo. 603. (2) Appellant, Weber Implement Company, not having recorded its chattel mortgage covering the engine until April 26th, 1907, can make no claim to a title passing before that date. Sec. 3404, R. S. 1899; Rawlings v. Bean, 80 Mo. 614, and cases cited in Annotated Statutes, 1906. (a) The fact that the appellant did on July 9, 1906, file a chattel mortgage from Counts covering a separator only, and the later mortgage filed and recorded April 26, 1907, showed that the writing purporting to cover the engine was in a different ink, was sufficient ground for the jury to have found, as they probably did, that this insertion was made after the transfer to Bauer. (3) No substantial evidence was offered that Bauer ever had any knowledge of the mortgage on the engine, in fact the testimony of Judge Nations clearly indicates the contrary, as also does the representation made in the written agreement, and even if he had actual knowledge, sec. 3404 expressly provides that it cannot avail the appellant. Bryson v. Penix, 18 Mo. 14; Wilson v. Milligan, 75 Mo. 41; Sauer v. Behr, 49 Mo.App. 88; Harrison v. Carthage, 95 Mo.App. 80; Landis v. McDonald, 88 Mo.App. 335; Babitt v. Kelley, 96 Mo.App. 534; Bevans v. Bolton, 31 Mo. 437. (4) The written agreement was a valid contract supported by mutual consideration, and even if Bauer sold the Tetley-Klein lots to Counts at a higher price than he was to pay, it was the agreement of the parties. Green v. Higham, 161 Mo. 333; Marks v. Bank, 8 Mo. 316; Forbes v. Railroad, 107 Mo.App. 661; Strong v. Whybark, 204 Mo. 341; Wirt v. Schumann, 67 Mo.App. 163; Lamp Co. v. Mfg. Co., 64 Mo.App. 115; Murdock v. Lewis, 26 Mo.App. 234; Fitzgerald v. Fleming, 58 Mo.App. 188; Mason v. Gass, 62 Mo.App. 452. (5) The defense of fraud in the execution of this agreement was abandoned by the defendant, and the sole attack was that it had been abrogated by a later agreement, and this defense was submitted to the jury. (a) The matters stated by appellant under point 1 of its brief have no application, for the agreement was executed by both parties. See v. Mallonee, 107 Mo.App. 721; Suggett's Admr. v. Cason's Admr., 26 Mo. 221; Blees v. Jenkins, 129 Mo. 647; Taylor v. Penquite, 35 Mo.App. 389; Mitchell v. Branham, 104 Mo.App. 480; Smith v. Davis, 90 Mo.App. 533. (6) The objections stated under point 2 have no merit as the property conveyed by the deed from Tetley-Klein Lumber Co. to Counts was shown to be the "Tim Glover" property by the testimony of the plaintiff and witness Tetley, and also witness Counts, and was directly connected with the agreement as having been made in pursuance thereof. Lancaster v. Elliott, 55 Mo.App. 249; Belch v. Miller, 32 Mo.App. 397. (7) No testimony was offered to show fraud in the procurement of the contract. (8) Proof of statement made by Bauer in conversation with Counts as to a settlement of the amount due from Kollmeyer was properly denied as the evidence of Counts showed that same was in effort to compromise. Cullen v. Ins. Co., 126 Mo.App. 412; 1 Greenleaf on Evidence, sec. 192; Railroad v. Farrell, 76 Mo. 183; Taussig v. Shields, 26 Mo.App. 318; Huetteman v. Viesselmann, 48 App. 582; Gorham v. Auserwald, 59 Mo.App. 77; Planing Mill v. Ins. Co., 59 Mo.App. 204; Fink v. Ins. Co., 60 Mo.App. 673; Herman v. Railroad, 77 Mo.App. 377; Hunter v. Helsey, 98 Mo.App. 616; Smith v. Shell, 82 Mo. 215; Ferry v. Taylor, 33 Mo. 323. (9) In the contract Bauer agreed to trade certain houses and lots known as the "Tim Glover" property, this he did, hence it can make no difference whether he actually owned same or not. He did in fact cause to be conveyed to Counts the very property agreed upon, hence Counts has no cause of complaint for he received exactly what he had contracted for and the testimony of witness Tetley shows that it was conveyed at the request of Bauer.
Replevin for a steam engine which was sold by defendant to J. D. Counts, along with a separator and sawmill, in June, 1906. At that time defendant took from Counts, for part of the purchase price of said machinery, five notes amounting to $ 525, falling due as follows: Two on October 15, 1906, two on October 15, 1907, and one October 15, 1908. These notes were secured by a chattel mortgage executed by J. D. Counts to defendant, June 16, 1906, but what the...
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