Charles A. Liemke Co. v. Krekeler Grocer Co.
| Citation | 95 S.W.2d 820,231 Mo.App. 169 |
| Parties | THE CHARLES A. LIEMKE CO., A CORPORATION, APPELLANT, v. KREKELER GROCER COMPANY, A CORPORATION, RESPONDENT |
| Decision Date | 07 July 1936 |
| Court | Court of Appeal of Missouri (US) |
Appeal from Circuit Court of City of St. Louis.--Hon. John W Calhoun, Judge.
AFFIRMED.
Judgment affirmed.
Harry Gershenson for appellant.
(1) The judgment and finding was against the law, because based on illegal, incompetent and irrelevant testimony, being the whole mass of oral testimony as to alleged oral arrangements with respondent as to validity of orders, campaign, and all other such alleged verbal arrangements, all of which tend to alter, modify, change, add to or subtract from the terms of the written blue orders signed or O.K'd by respondent. Colt v. Gregor (1931), 44 S.W.2d l. c. 6. (2) The court erred in admitting incompetent, irrelevant and immaterial testimony all tending to change, alter, add to or subtract from the terms of the written agreements--namely--evidence of alleged agreements with S. C Gardner and Peter Miravalle, all allegedly and admittedly made prior to the signing of the blue orders by respondent. Colt v. Gregor, supra. (3) The judgment and finding is for the wrong party. Appellant is entitled to recover for the merchandise under the written orders signed by respondent.
Foristel Mudd, Blair & Habenicht and Claude W. McElwee for respondent.
(1) In a suit arising in a justice court no formal pleadings are necessary and any defense except setoff or counterclaim may be made without its being formally pleaded. Sec. 2185, R. S. Mo. 1929; Krause v. Spurgeon, 221 Mo.App. 26, 297 S.W. 434; Williams v. Kessler, 295 S.W. 482, l. c. 484. (2) It is proper to admit extrinsic or parol evidence to determine the intention of the parties, where such intention is not clearly expressed in the instrument. Wimer v. Wagner, 323 Mo., l. c. 1164. (3) While parol evidence will not be received to contradict or vary a written agreement, still, if a part only of the contract be put in writing, the matter left out may be supplied by parol evidence. Black River Lumber Co. v. Warner, 93 Mo. 384; Owsley v. Jackson, 163 Mo.App. 11; Catalogue Co. v. Gas & Gasoline Engine Co., 130 Mo.App. 646, l. c. 649; Roe v. Bank of Versailles, 167 Mo., l. c. 427; Brown v. Bowen, 90 Mo. 185, l. c. 190; Greening v. Steele, 122 Mo. 287. (4) The rule which makes inadmissible parol evidence to vary or contradict the terms of a written instrument, is in its practical application subject to a number of exceptions, which depend largely upon the particular facts in each case, and the courts have endeavored to adapt the rule to the obvious demands of abstract justice as the facts are developed in each particular case. Owsley v. Jackson, 163 Mo.App. 11; Bowers v. Bell, 193 Mo. App., l. c. 219; Roe v. Bank of Versailles, 167 Mo., l. c. 427; Brown v. Bowen, 90 Mo. 185, l. c. 190; Black River Lumber Co. v. Warner, 93 Mo. 384; Liebke v. Methudy, 14 Mo.App. 65. (5) The rule which prohibits the introduction of parol evidence of a prior or contemporaneous agreement does not apply when there is offered in evidence a distinct contemporaneous agreement, not varying the written agreement, though it relates to the same subject-matter. Owsley v. Jackson, 163 Mo.App. 11; Bowers v. Bell, 193 Mo. App., l. c. 218; Craig v. Koss Const. Co., 69 S.W.2d, l. c. 966. (6) The rule is well settled that proof is admissible of any collateral, parol agreement, which does not interfere with the terms of the written contract, though it may relate to the same subject-matter; and whether such collateral agreement was made contemporaneously with or as preliminary to the contract in writing, is quite immaterial. Owsley v. Jackson, 163 Mo.App. 11; Boggs v. Laundry Co., 171 Mo. 290; Greening v. Steele, 122 Mo. 294; Brown v. Bowen, 90 Mo. 189, 190; Finks v. Hathaway, 64 Mo.App. 188; Printing Co. v. Pub. Co., 127 Mo.App. 148. (7) The general rule admitting parol evidence of a collateral verbal agreement is especially applicable in cases where such agreement operated as an inducement to cause the party signing the written instrument to sign it. Owsley v. Jackson, 163 Mo. App., l. c. 19. (8) Where the contract is prepared by one of the parties thereto, doubtful expressions will be construed against the party who prepared the contract and used the language. Gerat v. Winter, 218 Mo.App. 60, l. c. 66; Sandbrook v. Morrison Inv. Co., 239 S.W. 543, l. c. 547. (9) Where case was tried before court without a jury and no declarations of law were asked and none given, judgment should be affirmed on appeal if it is sustainable on any theory supported by the evidence. Kock v. Realty Co., 220 Mo.App. 396 (cas. cit.); Kellerman v. K. City T. Ry. Co., 68 Mo.App. 255; Smith v. Snodgrass, 246 S.W. 968; McClanahan v. Payne & Campbell, 86 Mo.App. 284. (10) The statement filed by plaintiff in the justice court, which merely charges that defendant is indebted to plaintiff "as per attached account," and said "attached account" merely states "30 gross of root beer extract at $ 23.40 per gross or total of $ 691.20," is insufficient to support a judgment had one been rendered in favor of plaintiff, said statement not showing to whom said 30 gross of root beer extract were sold at $ 23.40 a case, the date or dates upon which it was sold, the quantities delivered, or to whom it was delivered, or the date or dates of delivery, or that any sale was made at all, and defendant was entitled to judgment because of the insufficiency of said statement alone, if for no other reason. Richnitzer v. Vogelsang, 93 S.W. 326; Moffitt-West Drug Co. v. Crider, 100 S.W. 1099; Broughton v. St. L. Iron Mountain & S. Ry., 25 Mo.App. 10; Doggett v. Blanke, 70 Mo.App. 499; McCrary v. Good, 70 Mo.App. 425.
--This is a suit on an account which was instituted in a justice of the peace court by appellant, hereinafter referred to as plaintiff, against respondent, hereinafter referred to as defendant. On appeal to the Circuit Court of the City of St. Louis it was tried before the court, a jury having been waived, and resulted in a judgment for defendant. Plaintiff brings the case to this court by appeal.
The statement filed in the justice court and on which cause was tried in the circuit court, omitting caption and signature, is as follows:
The attached account referred to in the foregoing statement is as follows:
"30 gross of root beer extract at $ 23.40 per gross, or a total of $ 691.20."
The price per gross in the above statement is obviously incorrectly stated in the abstract, but since no point is made thereon it is immaterial.
Blanche Liemke, secretary and treasurer of the plaintiff company, testified on behalf of plaintiff that plaintiff sold and delivered to defendant thirty gross of root beer extract for the sum of $ 691.20, as evidenced by a batch of written orders signed by the defendant company. The batch of orders referred to was identified by the witness, marked Exhibit A and introduced in evidence. The form of the order which was used in all the transactions is as follows:
Each of the orders was made out to a different party named at the top of the order at the point marked "Sold." They bore different dates and were for various amounts of root beer, the whole batch aggregating thirty gross totaling $ 691.20. All the orders were in the same form and were shown to have been accepted at the bottom, either by having been stamped with a rubber stamp "Krekeler Grocer Co. per ---" or by having been marked in ink or pencil
The witness further testified that demand was made for payment of the amount claimed and that payment was refused. She also testified that the price charged for the merchandise was reasonable. On cross-examination, the witness was asked:
Counsel for plaintiff objected to the introduction of any oral testimony of any arrangement or agreement prior to or contemporaneous with the sale of the merchandise, for the reason that:
"This is a written contract sued upon, a written contract for the merchandise, and the contract upon its face states that it is the full agreement of the parties, and that the introduction of any such testimony would be an attempt to alter, vary or change the terms of a written agreement."
In answer to this objection, counsel for defendant stated that he would show in evidence:
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