Douglass v. White
| Decision Date | 08 May 1896 |
| Citation | 34 S.W. 867,134 Mo. 228 |
| Parties | Douglass et al., Appellants, v. White |
| Court | Missouri Supreme Court |
Appeal from Macon Circuit Court. -- Hon. Andrew Ellison, Judge.
Reversed and remanded.
C. P Hess for appellants.
(1) The court should have granted the change of venue. The applicants were the plaintiffs, and gave notice as soon as information was acquired by them. Dowliny v. Allen, 88 Mo. 300; Corpenny v. Sedalia, 57 Mo. 88; State to the use v. Matlock, 82 Mo. 455; Reed v. State, 11 Mo 380; State ex rel. v. Lubke; 29 Mo.App. 555; State v Thomas, 32 Mo.App. 159; State v. Shipman, 93 Mo. 157. (2) The court should have admitted the parol evidence offered by the plaintiffs. It is a principle recognized and acted upon as a cardinal rule by all courts of justice in the construction of contracts, that the intention of the parties is to be inquired into, and if not forbidden by law, is to be effectuated. Bradley v. Packet Co., 13 Pet. (U.S.) 89. The oral testimony was competent and should have been admitted. Brown v. Bowen, 90 Mo. 184; Burk v. Dulaney, 153 U.S. 228. (3) The original contract between plaintiffs and defendant was verbal and entire, and a part only was reduced to writing. The writing in this case was only signed by plaintiffs and not by defendant. It only recited what plaintiffs were to do and nothing as to what the defendant was obligated to do. Rollins v. Claybrooks, 22 Mo. 405; Moss v. Green, 41 Mo. 389. (4) Parol testimony to explain the subject-matter of a contract in writing is ordinarily admissible, when necessary for its interpretation, and not inconsistent with its terms. Centenary Church v. Clime, 116 Pa. St. 146; Stout v. Weaver, 72 Wis. 143; Bannon v. Aultman & Co., 80 Wis. 307; Cake v. Bank, 116 Pa. St. 264; Katz v. Bedford, 77 Cal. 309; Black River Lumber Co. v. Warner, 93 Mo. 374; Harvey Lumber Co. v. Lumber Co., 39 Mo.App. 214; State ex rel. v. Hoshaw, 98 Mo. 358.
Ben Eli Guthrie and Ben Franklin for respondents.
(1) The appellant's printed abstract, which is the sole record this court can consider at this hearing, fails to show that any judgment of any kind was ever rendered in this cause. Therefore, there was nothing to appeal from, and this appeal must be dismissed. There must be a final judgment to authorize an appeal. Mills v. McDaniels, 59 Mo.App. 331; Halloway v. Halloway, 97 Mo. 331; R. S., sec. 2246; In Re Redding Bros., 31 Mo.App. 425; Bank v. Davidson, 40 Mo.App. 421; Craig v. Scudder, 98 Mo. 664. (2) There was no error in overruling the application for change of venue. The application was without notice and out of time. It was after defendants had answered ready for trial. Therefore the court could not entertain the application. Summers v. Ins. Co., 45 Mo.App. 46; State v. Matlock, 82 Mo. 455; State v. Lubke, 29 Mo.App. 555; Johnson v. Moffett, 19 Mo.App. 159. (3) The court did not err in the refusal of the parol evidence offered by the plaintiffs. First. No exception was saved to the action of the court in excluding parol evidence as to other argreements than that contained in the written ones. Without exceptions saved at the time, this court can not review the action of the trial court. State v. Higgins, 124 Mo. 640. Pierce v. Michel, 60 Mo.App. 187. St. Louis v. Buron, 107 Mo. 380. Second. If it were possible for this court to review the action of the trial court in the matter of rejecting the evidence as to other agreements than the written ones, still the parol evidence as it appears in the record is insufficient to show any binding parol agreement, in addition to the written ones. The evidence is too indefinite, and when taken together shows that it relates to matters occurring in the preliminary conferences between the parties prior to the execution of the written contract, and became merged into the written contract, therefore. Boyd v. Paul, 125 Mo. 9; Tracy v. Union Iron Works, 104 Mo. 193, and cases cited; Walker v. Engler, 30 Mo. 130; Morgan v. Porter, 103 Mo. 135. If any of it was subsequent to the making of the written agreement, there was no consideration for it whatever.
This is an action for damages by plaintiff against defendant for the alleged wrongful conversion of a policy of insurance issued for the benefit of the plaintiff, Martha H. Douglass, and for the failure on defendant's part to keep paid up the annual premiums on same as they fell due, agreeable to a contract entered into between plaintiff and defendant.
This suit was instituted and made returnable to the March term, 1893, of the Macon county circuit court, and at that term defendant appeared and filed his motion to require plaintiffs to give a bond for costs, which being sustained, a cost bond was ordered filed in vacation and the cause continued to the September term of court.
Plaintiffs failed to file cost bond as required by the order of court, and on the second day of September term, the day the cause was set down for hearing, defendant filed his answer, by way of special denial, coupled with a counterclaim against plaintiffs for some $ 3,000 on sundry notes made by plaintiffs to him.
Plaintiffs then asked for a continuance of the cause, which was refused by the court, whereupon plaintiff then asked leave to take a nonsuit, and defendant objected. The court then told plaintiffs that they could take a nonsuit as to the cause of action stated in their petition, but that the cause would stand for trial on defendant's answer and cross bill.
Plaintiffs then declined to take a nonsuit, and asked leave to examine the answer and file reply, and said that they would go to trial on the case if the court would give them until 1 o'clock of that day. This was during the morning hour of court, just before the noon adjournment.
At 1 o'clock as the court convened after the noon adjournment, the plaintiff's attorney in open court filed and passed to defendant's attorney this application for a change of venue, in words and figures following, duly verified:
The application being taken up, the defendant objected to the court granting the change of venue as prayed for by plaintiff, for the reason that no notice of the intended application had been served upon him or his client as required by law, and that the cause has been set down for trial, and that it is out of time, informal, and irregular.
Whereupon the application was denied, a jury called, a trial had, and a verdict and judgment rendered for defendant for $ 2,327.85 on his counterclaim, which in time was duly entered in accordance with the prayer of defendant's answer. After the usual steps taken, the appeal is brought to this court.
Several errors are assigned, the first of which, the ruling of the court on the motion to change the venue, only will be considered, as upon its determination the judgment rendered therein must be reversed and the case remanded, to be proceeded with as provided by statute, as in cases where applications for change of venue have been sustained.
While applications of this character in so far as the question as to whether their presentation is timely, or whether the notice of the intended filing of same is sufficient, or whether the application itself is sufficient as to substance and form, are addressed to the sound discretion of the court, when these questions are settled in the affirmative of the proposition, or when from the facts of the case they should have been so settled, the duty of the court in the premises is no longer discretionary, but imperative, and the change should go in favor of the litigant asking it as a matter of right, and not as a matter of favor or discretion.
Nor is the right of the applicant made to depend upon the finding of the court upon the questions of facts stated in the application, or upon the private knowledge or information of the court of the existence or nonexistence of the facts therein stated, but must be determined by what is judicially presented in due course of law, and this the office of the application can alone perform. If the application is in substantial compliance with the requirements of the statutes, the change must be granted. The statute is explicit. The words "a change of venue may be awarded in any civil suit," etc., as used in our statute, are clearly mandatory and not directory.
So we must conclude from an examination of the application filed in this case, that all the...
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