Edwards v. Smith

• Decision Date: 31 May 1876
• Citation: 63 Mo. 119
• Parties: RICHARD S. EDWARDS, Respondent, v. CHARLES P. SMITH, ADMINISTRATOR OF THE ESTATE OF ALEX MCALLISTER, DEC'D, Appellant.
• Court: Missouri Supreme Court

63 Mo. 119

RICHARD S. EDWARDS, Respondent,

v.CHARLES P. SMITH, ADMINISTRATOR OF THE ESTATE OF ALEX MCALLISTER, DEC'D, Appellant.

Supreme Court of Missouri.

May Term, 1876.

Appeal from Buchanan Circuit Court.

Davis & Rea, with W. C. Smith, for Appellant.

I. The testimony of Catharine Edwards contradicted the written contract, and was improper. (Greenl. Ev., 8th ed., §§ 275, Bunce vs. Beck, 43 Mo. 266; Murdock vs. Ganahl, 47 Mo. 137.)

II. The evidence shows that the consideration, if any, for the agreement of McAllister to pay the $700 was, that McAllister was to have a half interest in the patent, and he had therefore a right to show that the invention was worthless, and that the consideration of the contract had failed. (Jolliffe vs. Collins, 21 Mo. 339; Dickerson vs. Hall, 14 Pick. 220; Lowell vs. Lewis, 1 Mass. 186; Van Ostrand vs. Reed, 1 Wend. 225; Barr vs. Baker, 9 Mo. 850.)

III. The question whether the receipt for $55, “in full of all demands,” was intended to cover defendant's liability under the contract, should have been left to the jury. (Gibson vs. Hanna, 12 Mo. 162; Grumley vs. Webb, 44 Mo. 144; 2 Pars. Contr., 5th Ed., 618-19; 2 Penn. 120; 2 Hill [N. Y.], 228; Coke Litt. 508.)

IV. The court could not by oral statements to counsel take from the jury a question submitted by a written instruction.

J. D. Strong, for Respondent.

I. The terms of the contract were doubtful, and the testimony of Catharine Edwards was competent to explain it. (Greenl. Ev. §§ 280, 282, 288, 293.)

II. Burnside's testimony that the machine was useless, was properly excluded. The contract contained no warranty in respect to it. If the consideration of the promise to pay the $700, as between Hart and McAllister, failed, the failure cannot be pleaded against plaintiff; Hart is in fault, not plaintiff.

The first instruction asked for defendant was properly refused. It assumed that the receipt covered the demand sued on, although the manifest date of the receipt, and the testimony of Catharine Edwards, showed the contrary. It ignores the rule that the facts which it recites may be contradicted by oral testimony. (2 Greenl. Ev. § 305.)

The matter from the discussion of which counsel was stopped was entirely foreign and extraneous, and the action of the court was entirely proper.NAPTON, Judge, delivered the opinion of the court.

This action originated in the probate court of Andrew county. The claim presented there was based on an instrument of writing, signed by both plaintiff and defendant, and the amount of $726.80 was allowed the claimant. An appeal was taken to the circuit court of Andrew county, and, by change of venue, was transferred to Buchanan.

It is difficult to understand the case without a literal copy of the written contract, which, being evidently the work of an illiterate person, disregards all rules of syntax and orthography, and is, moreover, somewhat obscure as to the consideration of the obligation.

The following is a copy:

“STATE OF MISSOURI AND COUNTY OF ANDREW,

)

December 23, 1869.

)

To all to whom these presents may come, Greeting:--Know ye that I, Richmond S. Edwards, of the first part, and Alexander McAllister, of the second part, doth bargain, contract and agree that the said Alexander McAllister of the second part is to pay to the said Richard S. Edwards of the first part the sum of one hundred and thirty-five dollars for Jacob Hart and fee hereinafter mentioned also, and one model on combined spring stone drill, on which Jacob Hart now petitions the government for letters patent on, and the said Alexander McAllister contracts, bargains and agrees to pay the said Richard S. Edwards the one-half of the above amount specified in hand, and furthermore, it is expressly agreed that the within mentioned Alexander McAllister shall pay to the within named Richard S. Edwards the sum of ($700) seven hundred dollars without defalcation or discount, which amount shall be made due and payable on the first Monday of March, in the year eighteen hundred and seventy-three (1873), and the said Alexander McAllister is to have for the above fees mentioned the half interest in the letters patent on the said Jacob Hart's invention for a stone drilling machine. And the said Richard S. Edwards binds himself under forfeiture of the above amount of ($700), seven hundred dollars not to make the bond publick over sixty days of being due. And of the $100.35 first mentioned the half thereof is to be paid in hand as above agreed (and the remainder at ten per cent.) which would leave 67 1/2, sixty-seven dollars and fifty cents to the said Richard S. Edwards of the first part; and if the said Jacob Hart does not get a patent allowed to him by the commissioner of patents that the said Richard S. Edwards as aforesaid is to forfeit or loose the remainder which is sixty-seven dollars and fifty cents ($67 1/2). Alexander McAllister having paid the said Richard S. Edwards $50 dollars of the amount agreed on as to be paid to he whether the patent be allowed to Jacob Hart or not, which leaves $17.50 to be paid on the half now due to the Richard S. Edwards.

As witness our hands and seal--the date above written.

(Signed)

RICHARD S. EDWARDS.

[Seal]

(Signed)

A. MCALLISTER

[Seal]”

The indorsements on this paper are as follows:

“Bond between Richard S. Edwards and A. McAllister. Savannah, Mo., Dec. 28, 1869.

Credit the within bond by the $17 1/2 seventeen dollars and fifty cents, due on the same at the present date.

Savannah, Mo., Feb. 22, 1870.

Credit the within bond by $20 received to date, and Apr. 5, 1870, credit the within bond by $47 1/2 forty-seven dollars and fifty cents.” This bond was accompanied with the requisite affidavit required in the probate court.

On the trial in the circuit court a jury was impaneled. It was agreed that a patent issued to Hart, for the rock-drilling machine, dated 15th of March, 1870. A conveyance or assignment of a half interest by Hart to McAllister was read dated on the 14th March, 1870.

The plaintiff, after reading the contract above copied, introduced as a witness Catharine M. Edwards, a sister of the plaintiff, who stated she was present, saw this contract written and signed; that plaintiff and Hart and McAllister were all present; that in the summer of 1869, Hart came to her brother to employ him to get the invention through the office at Washington, and her brother said he would charge him $1000 for such services. Hart wanted Edwards to take territory in payment, but Edwards declined, and it was finally agreed that for $700 or $800, Edwards was to carry out the invention, which Hart was to pay or “get some one else to do so;” that Hart employed her brother to build a model for which he (Hart) was to pay $35.

In regard to what occurred on the day when the written contract was signed, this witness was further allowed to state, objections of the defendant notwithstanding, that when Hart and McAllister came to her brother's house, McAllister examined the model, and plaintiff explained it to him. McAllister said it was a good thing and wanted to go into the invention, and did not want any one else to go into it. She then stated that the agreement between Hart and McAllister and Edwards was, that McAllister should take Hart's place in the contract to pay the $700 or $800, previously made between Hart and Edwards; that Edwards proposed that McAllister should go and get a lawyer to write the agreement, but McAllister objected and said he “did not want any one else to get into it,” or any one else to know of it, and that plaintiff could write, and accordingly it was written by the plaintiff. The plaintiff was a carpenter and was agent of one Brown, in Washington, a patent solicitor. Hart was the inventor, and Edwards put Hart's suggestions in form and made the model.

This witness saw the money paid, which is credited on the written contract, and also saw McAllister pay her brother $55 for a test machine.

An exception was taken to the admission of this evidence, on the ground that the written contract was the best and only evidence of the intent of the parties, and parol evidence could not vary or contradict it.

The plaintiff rested his case at this point, and the defendant moved for an instruction that the plaintiff was not entitled to recover, which motion the court overruled.

The defendant then offered a receipt, dated February 22, 1870, signed by the plaintiff, “for $60 for Geo. E. Brown, Washington, D. C., for the condition of patent on combined spring stone-drill, and $20 for the government for issuing the patent on the same to Jacob Hart.” This receipt was excluded as irrelevant, and the defendant excepted.

The defendant then, after some unimportant testimony, offered a copy of a receipt proved to have been lost, dated in March or February, 1871, for $55 “in full of all demands,” signed by Edwards, the plaintiff. This evidence was admitted, and it was conceded that such a receipt was given, but claimed that it had no connection with the contract sued on.

Judge Kelly was then called as a witness, who stated, that, when a notary public, he had taken the acknowledgment of Hart's assignment of one-half interest in the patent stone-drill to McAllister; that Hart, Mcallister and plaintiff were all present and talked about the trade, and the witness understood from what was said between the parties that plaintiff had some interest in the patent, and McAllister was taking plaintiff's place in the matter, that is, that plaintiff was selling out to McAllister his interest in the patent; but the witness had no distinct recollection...