Brimm v. Alexander, No. 11337.
| Court | Missouri Court of Appeals |
| Writing for the Court | Johnson |
| Citation | 172 S.W. 480 |
| Parties | BRIMM et al. v. ALEXANDER. |
| Decision Date | 11 January 1915 |
| Docket Number | No. 11337. |
v.
ALEXANDER.
1. WITNESSES (§ 400) — COPLAINTIFFS — RIGHT TO CONTRADICT.
Where two buyers contracted for 2,000 bushels of potatoes, and in a suit for breach of the seller's contract one of them testified that each bought, and was to be liable for, 1,000 bushels, the other buyer was entitled to testify that there was no such agreement with the seller.
2. FRAUDS, STATUTE OF (§ 106) — SALES — MEMORANDUM — SUFFICIENCY.
A contract read as follows: "I hereby bill to Brimm & Wadleigh 2,000 bu. potato at 69 ct. f. o. b. Green Ridge. To be Rurals and not too large, like what we looked at. [Signed] John Alexander." Held a sufficient compliance with Rev. St. 1909, § 2784 (the statute of frauds), as being sufficiently definite as to subject-matter, parties, time and place of delivery, and time, place, and manner of payment.
3. SALES (§ 66) — CONTRACT — CONSTRUCTION AS TO PARTIES.
A contract reading as follows: "I hereby bill to Brimm & Wadleigh 2,000 bu. potato at 69 ct. f. o. b. Green Ridge. To be Rurals and not too large, like what we looked at. [Signed] John Alexander" — is obviously and on its face a contract for a joint and several, and not a several, purchase.
[172 S.W. 481]
4. EVIDENCE (§ 441) — WRITTEN CONTRACTS — PAROL EVIDENCE.
Evidence that a contemporaneous oral agreement modified terms of a written contract cannot be received.
Appeal from Circuit Court, Pettis County; H. B. Shain, Judge.
Action by W. T. Brimm and Everett Wadleigh against John Alexander. There was judgment of nonsuit, and plaintiffs appeal. Reversed and remanded.
E. C. White and Hall, Robertson & O'Bannon, all of Sedalia, for appellants. W. D. Steele, of Sedalia, for respondent.
JOHNSON, J.
This is an action to recover damages resulting from the alleged breach by the vendor of a contract for the sale and delivery of 2,000 bushels of potatoes. At the close of the evidence of plaintiffs the court directed a verdict for defendant, plaintiffs took an involuntary nonsuit, with leave to move to set the same aside, and, after their motion to set it aside was overruled, brought the case to this court by appeal.
Respondent has filed no statement and brief, and the case is before us on the abstract of the record and statement and brief of appellants, from which it appears that the demurrer to the evidence was sustained mainly upon the ground that the petition alleges a joint sale of 2,000 bushels of potatoes to plaintiffs, while the evidence shows a separate sale to each plaintiff of 1,000 bushels. Further, it appears that the court regarded as serious the question of the sufficiency of the written memorandum of the sale under the statute of frauds.
On October 23, 1911, defendant, a wholesale dealer in produce at Sedalia, signed and delivered to plaintiffs, who were retail dealers at Green Ridge, Mo., the following written memorandum of the sale in question:
Sedalia, Mo., 10-23-1911....
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Dierickx v. Davis, No. 11312.
...Nat. Bank v. Swan, 3 Wyo. 356, 23 Pac. 743;Georgia, etc., R. Co. v. Lea, 92 Ala. 262, 9 South. 230;Brimm v. Alexander, 185 Mo. App. 599, 172 S. W. 480. The most striking thing about this evidence is the utter absence of any fact tending to prove willfulness on the part of the men, or any on......
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Dierickx v. Davis, 11,312
...(1890), 3 Wyo. 356, 23 P. 743; Georgia, etc., R. Co. v. Lee (1890), 92 Ala. 262, 9 So. 230; Brimm v. Alexander (1915), 185 Mo.App. 599, 172 S.W. 480. The most striking thing about this evidence is the utter absence of any fact tending to prove willfulness on the part of the men, or any one ......
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State v. Whipkey, No. 42291
...favor appellant, but it was not a [361 Mo. 1014] legal impeachment of the witness. Consult Brimm v. Alexander, 185 Mo.App. 599, 603, 172 S.W. 480, 481; Plunkett-Jarrell Gro. Co. v. Johnson, 137 Ark. 615, 206 S.W. 677, 678; State v. Winder, 183 N.C.776, 111 S.E. 530, 531; State v. Cummins, 7......
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Brim v. Alexander, No. 11993.
...sustained by the alleged breach of said contract on defendant's part. The case was here once before, and is reported in 185 Mo. App. 599, 172 S. W. 480. That time the plaintiffs appealed from an order refusing to set aside an involuntary nonsuit with leave. The case was remanded, with direc......
-
Dierickx v. Davis, No. 11312.
...Nat. Bank v. Swan, 3 Wyo. 356, 23 Pac. 743;Georgia, etc., R. Co. v. Lea, 92 Ala. 262, 9 South. 230;Brimm v. Alexander, 185 Mo. App. 599, 172 S. W. 480. The most striking thing about this evidence is the utter absence of any fact tending to prove willfulness on the part of the men, or any on......
-
Dierickx v. Davis, 11,312
...(1890), 3 Wyo. 356, 23 P. 743; Georgia, etc., R. Co. v. Lee (1890), 92 Ala. 262, 9 So. 230; Brimm v. Alexander (1915), 185 Mo.App. 599, 172 S.W. 480. The most striking thing about this evidence is the utter absence of any fact tending to prove willfulness on the part of the men, or any one ......
-
State v. Whipkey, No. 42291
...favor appellant, but it was not a [361 Mo. 1014] legal impeachment of the witness. Consult Brimm v. Alexander, 185 Mo.App. 599, 603, 172 S.W. 480, 481; Plunkett-Jarrell Gro. Co. v. Johnson, 137 Ark. 615, 206 S.W. 677, 678; State v. Winder, 183 N.C.776, 111 S.E. 530, 531; State v. Cummins, 7......
-
Brim v. Alexander, No. 11993.
...sustained by the alleged breach of said contract on defendant's part. The case was here once before, and is reported in 185 Mo. App. 599, 172 S. W. 480. That time the plaintiffs appealed from an order refusing to set aside an involuntary nonsuit with leave. The case was remanded, with direc......