Birdsall v. Coon

• Decision Date: 08 May 1911
• Citation: 139 S.W. 243,157 Mo. App. 439
• Parties: BIRDSALL v. COON.
• Court: Missouri Court of Appeals

139 S.W. 243

157 Mo. A. 439

BIRDSALL v. COON.

Springfield Court of Appeals. Missouri.

May 8, 1911.

Rehearing Denied July 20, 1911.

1. ASSIGNMENTS (§ 121)—PLEADING (§ 392) —ACTIONS BY ASSIGNEE — ISSUES, PROOF, AND VARIANCE.

Under the statute requiring suits to be brought in the name of the real party in interest, an assignee of a contract may sue thereon, and the variance between an allegation that the assignor is a corporation and the evidence that the assignor is a firm is immaterial.

2. WITNESSES (§ 154)—COMPETENCY—TRANSACTIONS WITH DECEASED PERSONS.

Where one party to a contract was represented at the time of the making thereof by two agents, the adverse party was competent to testify

to false representations made by one of the agents, though he was dead.

3. CONTRACTS (§ 245)—WRITTEN CONTRACTS— EFFECT.

A written contract merges all prior negotiations and expresses the final agreement of the parties, and a party thereto may not deny that it expresses the agreement, unless his signature was procured by fraud.

4. CONTRACTS (§ 94)—WRITTEN CONTRACTS— EFFECT.

Where a party to a written contract was unable to read or write, and the adverse party procured a contract from him by misreading it, or substituting one contract for another, the contract is void.

5. CONTRACTS (§ 94)—WRITTEN CONTRACTS— EFFECT.

Where a party to a contract, in full possession of his faculties, signs the contract without reading it, but relying on the statement of the adverse party, the contract is valid, though the adverse party misstated its contents.

6. CONTRACTS (§ 94)—WRITTEN CONTRACTS— EFFECT.

A party to a contract, in full possession of his faculties and able to take care of himself, in making a contract may rely on a correct reading of the contract by the agent of the adverse party, and, where the agent misread the contract and thereby induced the party to sign it, the contract is void.

7. SALES (§ 166)—CONTRACTS—LIABILITIES.

A buyer of an English edition of a literary work need not accept an American reprint.

8. ASSIGNMENTS (§ 138)—ACTION BY ASSIGNEE—EVIDENCE OF ASSIGNMENT—QUESTION FOR JURY.

Whether a party to a contract assigned it to a person suing the adverse party thereon held, under the evidence, for the jury.

9. SALES (§ 53)—CONTRACTS—FRAUD—QUESTION FOR JURY.

Whether a contract for the purchase of books was procured from the buyer through the fraudulent act of the agent of the seller in misreading the contract, and whether the buyer was guilty of negligence, held, under the evidence, for the jury.

Appeal from Circuit Court, Jasper County; David E. Blair, Judge.

Action by A. D. Birdsall against Byron H. Coon. From a judgment for plaintiff, defendant appeals. Reversed and remanded.

R. A. Mooneyham and I. N. Threlkeld, for appellant. McReynolds & Halliburton, for respondent.

GRAY, J.

This suit was instituted to recover from defendant sums claimed to be due plaintiff on a book deal. The petition is in two counts: The first on a contract made by defendant with plaintiff for the purchase of books, amounting to $85, to be paid for at $5 per month. The cause was tried before a jury, and defendant was allowed the full amount claimed for the defective books, and as no appeal was taken by plaintiff it will not be necessary to make further mention of the first count. The second count is on a contract alleged to have been made between defendant and St. Dunstan's Society, for books, including one set of Disraeli, for $180, payable in monthly installments of $10 each. The defendant paid $50 on the books, when he refused to pay any more, claiming that he was sold an English edition of Disraeli, and that the set delivered was an American reprint.

The petition alleges the making of the contract between defendant and St. Dunstan's Society, a corporation organized under the laws of New York; that shortly after the making of the contract the same was sold and assigned to plaintiff by the St. Dunstan's Society, and that the books were delivered, and defendant had paid thereon the sum of $50, praying judgment for the balance.

The answer, in addition to a general denial, admitted the signing of the contract, but alleged that at the time the contract was made, there were present Hamilton Linden and A. S. Coyle, representatives of the St. Dunstan's Society, and acting in behalf of said society; that the defendant was solicited to buy an English edition of Disraeli; that Linden read to the defendant what purported to be a contract for an English edition of Disraeli; that the defendant, believing that Linden correctly read the contents of the contract, and being deceived thereby, and relying on the correct reading of the contract by Linden, signed the same; that the books were delivered and defendant paid thereon the sum of $50 before he discovered that the set of Disraeli so shipped and received by him was not the English edition, but an American reprint edition; that as soon as he discovered the fraud perpetrated upon him he immediately notified the St. Dunstan's Society that he would not accept the books, and demanded the return of the $50 so paid. There was filed with the answer an affidavit of the defendant, stating that the facts set forth in the answer were true, and denying that St. Dunstan's Society was a corporation.

The plaintiff offered no testimony tending to prove that St. Dunstan's Society was a corporation, but did prove that a short time after the contract was made Linden, who was the agent of St. Dunstan's Society. presented the contract to plaintiff, containing an assignment written thereon, purporting to be signed by St. Dunstan's Society, by G. E. Wagner, treasurer. Mr. Wagner's deposition was taken, and he testified that he was the president and treasurer of the St. Dunstan's Society, but he gave no testimony that it was a corporation, or that it had sold or assigned the contract to plaintiff. The plaintiff also offered testimony that he paid the St. Dunstan's Society for the contract, and that the books were shipped to him, and he, in return, shipped the same to defendant.

The defendant offered testimony tending to prove that he was introduced to Linden by Coyle, and was solicited to buy certain books for $180, including an English edition of Disraeli; that he was shown a prospectus of the books, and while examining the same Linden prepared the contract and read it to him, and that in so doing Linden misread the contract, and that relying on the correct reading of the contract by Linden he signed it without reading it for himself.

The court excluded the testimony as to any conversations between the parties previous to the execution of the contract, but held that defendant might show that the contract was misread by Linden. When defendant, however, offered to prove what Linden said in reading the contract, the plaintiff objected on the ground that Linden was dead, and defendant was an incompetent witness to prove what Linden said in reading the contract. At the conclusion of the testimony, the court instructed the jury to find for the plaintiff for the full amount due on the second count, and to find for the plaintiff on the defendant's counterclaim for the return of the $50 paid by him. The defendant appealed to this court.

The action of the trial court is assailed on several grounds: First. Appellant contends there was no proof that St. Dunstan's Society was a corporation, or that any assignment was ever made to plaintiff by any one authorized to make it. The suit is not by the St. Dunstan's Society, but by plaintiff, who claims to be the assignee of the contract. Our statute requires the suit to be brought in the name of the real party in interest. It makes no difference whether the St. Dunstan's Society was a corporation or not, if the plaintiff is the owner of the contract. And if the St. Dunstan's Society was a copartnership, it would be an immaterial variance between the allegation and the proof. There was evidence that plaintiff purchased the contract from the general agent of St. Dunstan's Society, and that the contract purported to be assigned by the society; that the purchase by plaintiff was recognized by St. Dunstan's Society, from the fact that the books were not shipped by said society to the defendant, but were shipped to plaintiff, and by plaintiff shipped to defendant. The defendant offered testimony which, if offered for the purpose, would have tended to contradict the plaintiff's proof upon this point. We refer to letters written by St. Dunstan's Society to defendant more than a year after plaintiff's evidence shows he purchased the contract demanding balance due on the books. The letters were not only declarations of St. Dunstan's Society that it still owned the contract, but they were signed, "St. Dunstan's Society, per A. D. Birdsall" (this plaintiff), and thereby were admissions of the plaintiff that St. Dunstan's Society was the owner of the contract. The letters, however, were not offered for the purpose of showing that plaintiff had not acquired the contract, but for the purpose of proving that the set of Disraeli purchased was to be an English edition. The attention of the trial court was not called to the fact that they were admissible to disprove the ownership of the contract, but the sole complaint against the action of the court in refusing to admit the letters was based upon their admissibility to prove fraud in the execution of the contract.

It is next claimed by the appellant that the court erred in refusing to permit him to show that the contract was misread to him. We have examined the abstract of the record, and find that the trial court excluded the testimony on the ground that Linden, the agent of St. Dunstan's Society, with whom the defendant made the contract, was dead, and therefore defendant was not a competent witness to prove the contract.

It is true at first the court did hold the testimony was not competent, for the reason that the defendant was a...