Craig v. Koss Const. Co.

• Decision Date: 20 February 1934
• Docket Number: No. 5204.,5204.
• Court: Missouri Court of Appeals
• Parties: CRAIG et al. v. KOSS CONST. CO.

69 S.W.2d 964

CRAIG et al. v. KOSS CONST. CO.

No. 5204.

Springfield Court of Appeals. Missouri.

February 20, 1934.

Rehearing Denied April 3, 1934.

Appeal from Circuit Court, Jasper County; Grant Emerson, Judge.

"Not to be published in State Reports."

Suit by the Ozark Materials Company and another against the Koss Construction Company. After the case was tried, plaintiff named was adjudicated a bankrupt, and Clarence Craig, trustee, was substituted as party plaintiff. From a judgment granting plaintiffs partial relief, both plaintiffs and defendant appeal.

Affirmed in part, and reversed in part.

Howard Gray, of Carthage, and A. G. Young, of Webb City, for plaintiffs.

Ray Bond, of Joplin, for defendant.

BAILEY, Judge.

Plaintiffs filed suit in two counts to recover alleged amounts due on certain contracts for the furnishing of crushed stone and sand used by defendant in highway construction. Since both plaintiffs and defendant have appealed, we shall refer to them as the plaintiffs and defendant in this opinion.

It appears that the original parties plaintiffs were the Ozark Materials Company, a corporation, and Ben C. Aylor. Since the case was tried, said corporation has been adjudicated a bankrupt and Clarence Craig, trustee, has been substituted as party plaintiff.

The first count of the petition is based on a claim for a balance alleged to be due for material shipped defendant by the Highway Stone Company (under which name one J. Frank Todd was engaged in the shipment of rock, sand, and gravel for highway construction) and by the Ozark Materials Company, which said materials were shipped to defendant for road construction on a part of United States Highway 71, in Barton and Vernon counties, Mo., pursuant to a parol contract. The statements filed indicate that there was a balance due plaintiffs, as assignees and owners of the accounts, in the sum of $2,970.81, which is conceded to be the unpaid balance.

As to this first count two defenses were pleaded, as follows: First, that, under the agreement between the parties, defendant had a right to and did go upon the market and purchase materials on account of the alleged failure of Todd and plaintiffs to furnish same as needed and required, and had the right to deduct the extra cost of such purchases over the contract price from the amount due plaintiffs under their contract, which deduction represents the unpaid balance sued for; and, second, that Todd and Aylor had, by verbal agreement, made in Jefferson City, released defendant from any claims which they might have had on account of the Barton and Vernon county job, in consideration of defendant giving Todd a contract for furnishing materials for constructing concrete pavement on State Highway 38 in Jasper county, Mo., which contract is sued on in the second count of plaintiffs' petition.

To the first of these defenses, plaintiffs, by their reply, pleaded in effect that, if it be true that they failed to furnish material in the quantities agreed upon, such failure arose by reason of defendant's failure to furnish a "clam-shell" and crane for the purpose of unloading materials, as defendant had agreed to do, and thus enable plaintiffs to prepare stockpiles of said materials; that defendant started the work of paving without any stockpiles; that defendant, immediately after the commencement of said work, placed random orders with various materialmen and caused the railroads to become so congested with cars that plaintiffs were unable to secure cars and make shipments of material, but had to shut down their plants.

The second count of plaintiffs' petition is based upon an alleged balance due under a written contract for the furnishing of materials on highway construction work in Jasper county, as heretofore indicated.

The answer to the second count was a general denial and a plea of payment in full. The reply was a general denial.

The trial was to the court without a jury, and resulted in a judgment in favor of plaintiffs on the first count in the sum of $3,240.65 and on the second count in the sum of $1,874.76. From this judgment both parties have appealed.

A contention is made that there was no substantial evidence to support the finding of the trial court as to the first count of plaintiffs' petition. It is of course admitted that this court cannot weigh the evidence and if there is any substantial evidence in support of the judgment of the trial court it must stand. There can be no doubt that plaintiffs offered substantial evidence to prove that the materials were furnished under the contract and that defendant owed the balance claimed, and plaintiffs were entitled to recover unless the defense that plaintiffs gave defendant a release or that defendant was compelled to go out upon the open market and buy material, the excess cost of which over the contract price made with plaintiffs equaled or exceeded plaintiffs' said claim, should prevail. Plaintiffs made a prima facie case under defendant's admissions as to the amount due. In addition to that, Mr. Todd offered testimony in support of the contentions made in the reply.

We have read this record carefully, and while there was substantial evidence, and perhaps the weight of the evidence, to substantiate defendant's claim that he had a right to go out upon the open market and purchase material, and that plaintiffs failed to fulfill their contract as to the amount of material to be furnished daily, there was also evidence on the part of plaintiffs that the failure to furnish as much material daily as required by the contract was the result of defendant's failure to provide a "clam-shell" and crane for unloading purposes, and further evidence that on account of defendant's acts in ordering material from others plaintiffs were unable to perform their contract, by reason of car shortage and congestion of the tracks caused thereby. It is therefore unnecessary to review the evidence further, and the point that there was no substantial evidence to support the judgment as to the first count must be decided against defendant.

It is urged that the trial court erred in sustaining plaintiffs' objection to certain testimony offered by defendant relative to a verbal release alleged to have been made by J. Frank Todd and B. C. Aylor whereby they released defendant from all claims arising under the Barton and Vernon county paving job upon which the first count of plaintiffs' petition is based. This parol evidence, which was admitted by the trial court at the time it was offered "subject to plaintiffs' objection," and afterwards ruled out, was to the effect that in January, 1930, about one year after the Barton-Vernon county paving had been completed, defendant, Mr. Poole, who was an engineer employed by defendant, Mr. Aylor, and Mr. Todd, met in a hotel in Jefferson City, Mo., to discuss prices on material for the Jasper county job, the subject-matter of the second count of the petition; that at that time plaintiffs were claiming an alleged balance due under the contract for furnishing material for the said Vernon-Barton county paving, which claim arose because of defendant having charged plaintiffs with the excess cost of purchasing material from others; plaintiffs wanted the contract for furnishing material for the Jasper county job, but defendant refused to consider plaintiffs' bid unless the claim on the old job was settled; that in order to secure said material contract for the Jasper county job, plaintiffs agreed to release defendant from any claim on the Vernon-Barton county job. It appeared that the Jasper county job was thereafter given plaintiffs by defendant and a written contract was entered into, which contract, however, made no mention of the Vernon-Barton county contract and no mention of any release, but did set forth the prices plaintiffs were to receive for the materials to be supplied and set forth other terms of their agreement. Plaintiffs objected to the parol evidence of the release on the ground that such evidence was inadmissible, for the reason that the written contract expressed its full consideration which consideration, it was said, "is not incidental but contractual, and, that being true, all that is said in that previous conversation about the question of consideration there being no ambiguity in this contract and none claimed, merged in the written instrument." Defendant, while admitting the general common-law rule to be that, in the absence of fraud or mistake, parol evidence is not admissible to vary, add to, or contradict the terms of a written contract, contends that the offer of proof in this case falls within two of the numerous exceptions to the general rule above stated. It is urged that parol evidence may be used to prove a contemporaneous or prior parol contract, provided that contract does not conflict with the written agreement, and that this is true where the consideration of the parol agreement is the execution of the written agreement. It is further contended that the amount of the consideration and the character thereof may be shown or inquired into, even though the parol evidence offered tends to show the consideration to be different from that stated in the written contract.

The consideration is thus expressed in said written contract: "The price of said materials to Koss Construction Company is $1.00 per ton for crushed flint, plus $16.00 per car switching charges from Highway Stone Company's source of supply to said plant of Koss Construction Company. The price of sand to be 75¢ per ton plus $16.00 per car switching charges to Koss Construction Company plant. Average capacity of railroad cars to be minimum of 50 tons."

There is ample authority in support, not only of plaintiffs' contention, but also in support of the two exceptions to the general rule relied upon by defendant as above set forth. The difficulty is in the practical application of the rules. In the case of Owsley v. Jackson, 163 Mo. App....