Birdsall v. Coon
| Decision Date | 08 May 1911 |
| Parties | A. D. BIRDSALL, Respondent, v. BYRON H. COON, Appellant |
| Court | Missouri Court of Appeals |
Motion for Rehearing Overruled, July 20, 1911.
Appeal from Jasper Circuit Court.--Hon. D. E. Blair, Judge.
REVERSED AND REMANDED.
Judgment reversed and cause remanded.
R. A Mooneyham and I. N. Threlkeld for appellant.
(1) Before admitting the contracts and assignments of the St Dunstan's Society in evidence, plaintiff should have been required to prove the corporate existence of said society and also to establish by competent evidence the authority of the officers of said corporation to execute and deliver the contracts so assigned. R. S. 1899, sec. 746; Hyde v Larkin, 35 Mo.App. 365; Hutchinson v. Green, 91 Mo. 367; Calumet Paper Co. v. Haskell Co., 144 Mo. 331; Ferguson v. Trans. Co., 79 Mo.App. 352; Dignan v. Throughman, 88 Mo.App. 62. (2) Appellant insists that he should have been permitted by the court to prove his allegations of fraud, under the issues joined in the pleadings, and that the facts proved should have been submitted to the jury. Tate v. Locke, 130 Mo.App. 283. (3) Appellant insists that he should have been permitted to explain by parol evidence the illegible parts of said alleged contract, since the edition, character, workmanship, etc., was in issue and also to explain by parol evidence any ambiguous terms of said alleged contract, and cites in support of his contention: Brown v. North, 21 Mo. 582; Palmer v. Ins. Co., 31 Mo.App. 471; Ins. Co. v. Owens, 81 Mo.App. 201; Brozlec v. Ashens, 107 Mo.App. 168; Tate v. Locke, 130 Mo.App. 273. (4) The rule that parol testimony cannot be received to vary a written contract is not without exceptions and where the payee in a promissory note (and there is no more binding contract), by false representations as to the character of the paper secures the makers' signatures, such facts may be shown. Davis v. Scovern, 130 Mo. 303; Lumber Co. v. Warner, 93 Mo. 374; State ex rel. v. Hoshaw, 98 Mo. 358; Wright v. McPike, 70 Mo. 175.
McReynolds & Halliburton for respondent.
(1) Plaintiff having entered into a contract with St. Dunstan's Society by its corporate name, obligating himself to pay said society a certain amount of money for certain books, admits its corporate capacity and cannot in an action on said contract plead nul tiel corporation, being estopped by said contract from making such plea. Benevolent Society v. Fitzwilliams, 12 Mo.App. 445; Land Co. v. Railway Co., 161 Mo. 604; 2 Morawetz, Priv. Corp., secs. 750, 753; 1 Beach. Priv. Corp., sec. 13; Railroad v. McPherson, 35 Mo. 13; Ins. Co. v. Needles, 52 Mo. 18; St. Louis v. Shields, 62 Mo. 247; Stoutemore v. Clark, 70 Mo. 471; Studebaker Bros. v. Montgomery, 74 Mo. 101; Gas Light Co. v. St. Louis, 84 Mo. 202, 11 Mo.App. 55; Broadwell v. Merritt, 87 Mo. 95; Mining Co. v. Richards, 95 Mo. 106; Hasenritter v. Kirchoffer, 79 Mo. 239; Regan v. McElroy, 98 Mo. 349; Reinhard v. Mining Co., 107 Mo. 616. (2) The position of defendant in his answer and at the time of trial was that a verbal agreement had been made with him by the agent of St. Dunstan's Society, whereby he represented Disraeli was an English edition, said St. Dunstan's Society to pay all import duties. According to his testimony this representation was antecedent to the signing of the contract. In these circumstances the plea that he did not read it comes too late to avail as a defense. Campbell v. Van Houten, 44 Mo.App. 231; Magee v. Verity, 97 Mo.App. 486; Catterlin v. Lusk, 98 Mo.App. 182; Robinson v. Jarvis, 25 Mo.App. 421; School District v. Ins. Co., 61 Mo.App. 597; Shanley v. Gas Co., 63 Mo. 123; Paris Mfg. Co. v. Carle, 116 Mo.App. 581; Powell v. Price, 111 Mo.App. 320; Ins. Co. v. Winn, 125 Mo.App. 384. (3) The written contract is conclusively presumed to merge all prior negotiations and to express the final agreements of the parties. To permit a party, when sued on a written contract, to admit he signed it, but deny it expresses the agreement he made, or to allow him to admit he signed it but did not read it or know its stipulations, would destroy the value of all written contracts. Boulware v. Automobile Co., 134 S.W. 9; Crim v. Crim, 162 Mo. 544; Catterlin v. Lusk, 98 Mo.App. 187; Tracy v. Ironworks, 29 Mo.App. 324, 104 Mo. 193. (4) Failure of a person not being ignorant, or under disability or infirmity to read an instrument or inform himself of its contens, is his own fault, and is not sufficient to overcome its legal effect. Gwin v. Waggoner, 98 Mo. 327; Campbell v. Van Houten, 44 Mo.App. 237; Penn v. Brashear, 65 Mo.App. 27; International Text Book Co. v. Lewis, 130 Mo.App. 158. (5) A person who can read should read an instrument before he signs it, and if he does not exercise such prudence and is deceived, there is no legal fraud. Teachout v. Clough, 143 Mo.App. 487; Nicol v. Young, 68 Mo.App. 453; United Breeders' Co. v. Wright, 134 Mo.App. 717, 139 Mo.App. 195.
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 eighty-five dollars to be paid for at five dollars 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 ten dollars each. The defendant paid fifty dollars 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 fifty dollars, 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 fifty dollars 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 fifty dollars 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 fifty dollars 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,...
To continue reading
Request your trial