Brimm v. Alexander

• Citation: 172 S.W. 480
• Decision Date: 11 January 1915
• Docket Number: No. 11337.,11337.
• Parties: BRIMM et al. v. ALEXANDER.
• Court: Court of Appeal of Missouri (US)

172 S.W. 480

BRIMM et al. v. ALEXANDER.

No. 11337.

Kansas City Court of Appeals. Missouri.

January 11, 1915.

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.

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
                Mr. W. T. Brimm, Green Ridge
                            John Alexander
                      Wholesale Fruits and Produce
                542 East Fifth St.     Bell Telephone 1379
                 I hereby bill to Brimm & Wadleigh 2000 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.
                

Following the delivery of this memorandum there was a sharp and continuing advance in the market price of potatoes, and after a reasonable time for delivery had expired defendant refused to perform the contract, and plaintiffs were compelled to buy 2,000 bushels from another dealer at the advanced market price.

Plaintiffs were not in partnership, but were the respective proprietors of separate businesses in Green Ridge, and each had agreed with the other to take and pay for one-half of the potatoes as they were delivered. On cross-examination the plaintiff Wadleigh testified that he was to have 1,000 bushels and Brimm an equal quantity, and that he "would owe Mr. Alexander for a thousand bushels" and "Brimm would owe Mr. Alexander for a thousand bushels." But his...