Darnell v. Lafferty

• Decision Date: 01 June 1905
• Citation: 113 Mo. App. 282,88 S.W. 784
• Court: Missouri Court of Appeals
• Parties: DARNELL et al. v. LAFFERTY.<SMALL><SUP>*</SUP></SMALL>

88 S.W. 784

113 Mo. App. 282

DARNELL et al. v. LAFFERTY.^*

St. Louis Court of Appeals. Missouri.

June 1, 1905.

1. APPEAL—QUESTIONS REVIEWABLE.

Rulings in favor of appellant cannot be reviewed where respondents do not appeal.

2. JUSTICES' COURTS — PLEADINGS — SUFFICIENCY.

Under Rev. St. 1899, § 3852, declaring that no formal pleadings shall be required in a justice's court, a statement of a cause of action and account filed before a justice of the peace are sufficient if they advise the opposite party of what he is charged, and bar another action for the same subject-matter.

3. STATUTE OF FRAUDS — MEMORANDUM OF SALE—SUFFICIENCY.

Under Rev. St. 1899, § 3419 (Statute of Frauds), it is the general rule that a memorandum evidencing an agreement for the sale of personal property must contain the essential terms of the contract expressed with such a degree of certainty that it may be understood without recourse to parol evidence to show the intention of the parties.

4. SAME—TIME AND PLACE OF DELIVERY.

A written statement that defendant had bought of plaintiff certain stock, to be weighed at a named place on a certain date, with 3 per cent. off at 3½ cents per pound, was sufficiently definite as to time and place of delivery to satisfy the statute of frauds.

5. SAME—NECESSITY OF PROVISION AS TO DELIVERY.

A memorandum evidencing the sale of personal property is sufficient to satisfy the statute of frauds, though it does not state the time and place of delivery, it being regarded in such a case as providing for delivery within a reasonable time at the customary place.

6. SAME—TIME AND PLACE OF PAYMENT.

Where a contract for the sale of cattle fixed the price at a certain amount per pound, and made no other stipulation as to payment, the price was payable in cash at the time and place of delivery.

7. SAME—PARTIES—UNDISCLOSED PRINCIPAL.

A memorandum evidencing the sale of personal property is not rendered insufficient as to designation of the parties because one of them is acting as agent for an undisclosed principal, parol evidence being admissible to prove the agency.

8. SAME—DESCRIPTION OF SUBJECT-MATTER.

A memorandum evidencing the sale of personal property is sufficient with regard to the description of the subject-matter if the description is such that, taken together with the facts and circumstances surrounding the transaction, and within the knowledge of the parties before and at the time of the contract, supplied by parol evidence, the subject-matter can be with certainty identified.

9. SAME—CERTAINTY AS TO SUBJECT-MATTER.

A memorandum evidencing the sale of personal property described as "ten head of cows and heifers" is sufficiently definite in its description of the subject-matter to satisfy the statute of frauds.

Appeal from Circuit Court, Pike County; David H. Eby, Judge.

Action by F. L. Darnell and others against Martin Lafferty. From a judgment for plaintiffs, defendant appeals. Affirmed.

Plaintiffs instituted their suit before a justice of the peace in Pike county, praying judgment in damages against defendant on account of the defendant's nonperformance of the contract sued on. As the point in decision here is the sufficiency of the petition and the contract declared on under the statute of frauds, we will set out the petition or statement filed before the justice in full, omitting the caption:

"Plaintiffs, for their cause of action against the defendant, say that the defendant entered into a contract with F. L. Darnell, one of the plaintiffs in this case, in writing, for the purchase of ten head of cows and heifers, which contract is in words and figures as follows, to wit:

                     "`Vandalia, Mo. June 11, 1903
                "`This is to certify that I, the undersigned
                have this day bought of F. L. Darnell
                ten head of cows and heifers to be weighed
                at Curryville, Mo., on August 11th, 1903, with
                3% off at 3½ cents per lb
                "`[Signed]           Martin Lafferty.'
                

"Plaintiffs say that said contract was delivered to said F. L. Darnell and accepted by him, and that he at all times stood ready and willing to deliver the cattle referred to in said contract to the defendant, and caused them to be weighed at the time and place therein stated; but plaintiffs say that on August 11, 1903, the defendant made request that the plaintiff Darnell keep the cattle mentioned in the contract until the 1st of September, and that plaintiff F. L. Darnell was still ready and willing to deliver said cattle to defendant, and caused them to be weighed at Curryville, Missouri, on September 1st, as requested by defendant, although the said plaintiff F. L. Darnell at no time agreed that the time of delivery should be extended until September 1st, but requested a payment of two hundred dollars down on said cattle as a condition for agreeing to such extension of time; but the defendant failed to pay said sum, and that the plaintiff was under no legal obligation to extend the time. Plaintiffs further state that J. W. Lewellyn was at the time of the making of said contract the owner of the cattle mentioned therein, and that his coplaintiff, F. L. Darnell, was acting as his agent in the care and management and sale of said cattle, and was his trustee for that purpose; and that said contract so entered into between defendant and F. L. Darnell was entered into by said F. L. Darnell for and on behalf of his coplaintiff, J. W. Lewellyn. Plaintiffs say that said defendant, Martin Lafferty, has wholly failed and refused to keep the terms and conditions and covenants of said contract so executed and signed by him, and has declined and refused and failed to receive the cattle mentioned therein either on August 11, 1903, or on September 1, 1903, or at any other date, and has failed and refused to pay the purchase price for same at any time. Plaintiffs say that said cattle, when weighed at Curryville, Missouri, on September 1, 1903, weighed 10,580 pounds, and with three per cent. off at three and one-half cents per pound the purchase price for the same amounted to $359.19. Plaintiffs say that by reason of the failure and refusal of the defendant to comply with and live up to the terms of his said contract they have sustained damages in the sum of two hundred dollars, in this: that the reasonable market value of the cattle at the time and place of delivery had declined to the amount of two hundred dollars under the contract price, and plaintiffs have been put to expense and inconvenience in bringing said cattle to Curryville, Mo., to be weighed, and by reason of the premises plaintiffs state that defendant is indebted to them in said sum of two hundred dollars by reason of his failure to comply with and carry out the terms of his contract. Wherefore plaintiffs pray judgment against defendant for said sum of two hundred dollars ($200), together with interest and costs of suit."

The statute of frauds was interposed as a defense. Plaintiffs recovered judgment before the justice. The defendant appealed to the circuit court of Pike county. At the return term of the appeal in the circuit court the cause was continued. At the second succeeding term after the appeal had been lodged and on the circuit court's docket, plaintiffs filed their motion for an affirmance of the judgment of the justice for the reason that no notice of the appeal had been given as required by statute, and that they had done nothing amounting to a waiver thereof. This motion was overruled by the court, and exceptions saved. On this motion the court heard evidence, and examined its records, which were introduced. The court possibly found some of the record against plaintiffs on this hearing. After the ruling on said motion plaintiffs filed a motion to correct the record, which they understood the court had found against them. This motion the court likewise overruled. Plaintiffs excepted. In due course the cause came on for trial before a jury. The record discloses that both sides made their opening statements, and "whereupon plaintiffs proceeded to introduce evidence to sustain their cause of action, but upon the objection upon the part of the defendant to the reception of any evidence under the statement of the plaintiffs filed in the cause all evidence was excluded by the court. To the action of the court plaintiffs then and there excepted, whereupon the court directed the jury to return a verdict for the defendant, which was done." Plaintiffs filed a motion for a new trial in due time. This motion was by the court sustained. The defendant excepted to the action of the court in sustaining plaintiffs' said motion for a new trial, and brings the cause here by appeal. Appellant complains of the action of the trial court in sustaining the motion for a new trial. He also discusses in his brief the action of the court in overruling plaintiffs' (respondents') motions to affirm the judgment and to correct the record, both of which motions were ruled in the appellant's favor in the court below.

Ball & Sparrow, for appellant. J. D. Hostetter, for respondents.

NORTONI, J. (after stating the facts).

The action of the circuit court in overruling the motion to affirm the judgment of the justice for want of notice of appeal and the action of the court in overruling the motion to correct the record in the court below are not reviewable here on appellant's appeal. Both of those motions having been determined in appellant's favor, and the respondents not appealing therefrom, the action of the trial court is not reviewable here at this time. It is unnecessary to cite authorities on this proposition.

Section 3852 of the Revised Statutes of 1899, provides that "no formal pleadings upon the part of either plaintiff or defendant shall be required in a justice's court." Under this provision this court and the Supreme Court have repeatedly held that a statement of a cause of action and account filed before a justice of the peace shall be sufficient to advise the opposite party of what he is...