England v. Houser

• Decision Date: 12 February 1914
• Parties: ENGLAND v. HOUSER.
• Court: Missouri Court of Appeals

163 S.W. 890

178 Mo. App. 70

ENGLAND v. HOUSER.

Springfield Court of Appeals. Missouri.

February 12, 1914.

1. PLEADING (§ 78) — DEFENSES — NECESSITY OF PLEADING.

In an action on a contract, where no change of the written contract or substitution of a new one was pleaded, the defendant will be held to have waived this defense, even though some evidence of modification is incidentally introduced.

2. APPEAL AND ERROR (§ 1212) — LAW OF CASE.

In an action on a contract, where the appellate court, on a former appeal, held that defendant could not rely on a certain defense unless it was pleaded, and the defendant did not amend before retrial, that defense is improperly submitted to the jury, particularly where the evidence was the same on the second trial, and the former opinion held that it was insufficient to establish the defense even if pleaded.

3. CONTRACTS (§ 238)—SUBSTITUTION—WHAT CONSTITUTES.

It is not every addition to or variation of a contract that destroys its validity and makes a new contract, parties being always at liberty to adjust contracts where they do not materially affect their rights; and hence, in an action on a contract, where defendant claimed that it had been abrogated by a second contract, a charge that, if the parties had discussed and adjusted their differences and agreed on different terms than those expressed in the contract in suit, then plaintiff cannot recover is improper.

4. EVIDENCE (§ 434)—WRITTEN CONTRACTS— IMPEACHMENT.

Where a written contract was signed by defendant, who understood its binding nature, and stated that he might just as well sign a note, it cannot be impeached on the ground that plaintiff's agent informed him he would strike out all the binding provisions of the contract, and that it would only constitute a memorandum, for such agreement was merely a collateral oral agreement, which was merged in the written agreement, and a breach did not constitute fraud.

Appeal from Circuit Court, Barry County; Carr McNatt, Judge.

Action by James England against L. F. Houser. From a judgment for defendant, plaintiff appeals. Reversed and remanded, with directions.

Mayhew, Sater & Gardner, of Monett, for appellant. J. S. Davis, of Cassville, for respondent.

STURGIS, J.

1. The first appeal in this case is reported in 163 Mo. App. 1, 145 S. W. 514. It appears that the case was retried on the same pleadings as nothing is said in this record as to any amended pleading being filed. It will not be necessary to set out the pleadings or facts in full, as the reader is referred to the former opinion. The suit is on a written contract order, signed by defendant, which is set out in the former opinion, for a tombstone to be placed at his wife's grave. The evidence for plaintiff on this trial is practically the same as before, and shows the same state of facts recited in the former opinion. As the case at the first trial went off on a demurrer to plaintiff's evidence, the evidence of defendant was not then heard.

The case was reversed on the former appeal because the trial court wrongfully held that the evidence showed that the written contract sued on had been so changed as to make a new oral contract, superseding the written one. This court then examined the evidence, and held that it did not show any such new contract. It was then pointed out that no change of the written contract or substitution of a new one was pleaded and if, on a new trial, defendant wanted to raise this defense he should do so in his answer citing Sutter v. Raeder, 149 Mo. 297, 309, 50 S. W. 813, where it is held that, where no modification or rescission of a contract is pleaded by defendant, such defense will be considered waived even if there is some evidence incidentally introduced to this effect without objection. Kelerher v. Henderson, 203 Mo. 498, 512, 101 S. W. 1083, and Musser v. Adler, 86 Mo. 445, 449. Defendant did not so amend his answer on this trial as to raise such issue, and clearly ought to be held to have waived the same. Merrill v. Central Trust Co., 46 Mo. App. 243.

2. Nevertheless we find the court gave this instruction: "The court instructs the jury that if they find and believe from the evidence that plaintiff and defendant, on or about the ____ day of June, 1909, and after they had discussed and adjusted some of the differences and misunderstandings which they had in regard to the matters in suit, and if you shall find that they agreed with each other on different terms and conditions than those expressed in the instrument sued on, thereby intending to make another and different contract from the one sued on, and to substitute such new contract for the one in suit, then plaintiff cannot recover in this action, and your verdict must be for the defendant." The defendant did not introduce any evidence as to any change in the written contract or substitution of a new one. He still relies on plaintiff's evidence as so showing. He was denying that any contract was made at any time. According to his evidence there was neither an old or new contract made—neither an original or substituted one. We do not find that plaintiff's evidence is materially different in this respect than at the former trial. Under the above instruction the jury were allowed to find that the very things which this court said on the former appeal did not show or amount to a change of the written contract, and substitution of a new one did do so. The instruction is also too broad and indefinite to be a safe guide to a jury in permitting it to find that the parties "agreed with each other on different terms and conditions than those expressed in the instrument sued on, thereby intending to make another and different contract from the one sued on," without any directions as to what different terms and conditions, if found, would amount to a change of the old contract into a new one. This is no easy proposition to solve, as is shown by the former appeal, where the trial court and this court differed very materially in this respect on the same facts. We cannot see that substituting the opinion of the jury for that of the learned trial judge on this matter has helped it any. As shown in the former opinion, it is not every addition to, or variation of, a contract that destroys its validity and makes a new contract. This court there said: "Parties are always at liberty to adjust the details of transactions where they do not materially affect their vested rights under the contract, without abrogating the whole contract. Davis v. Commonwealth [164 Mass. 241, 41 N. E. 292] 30 L. R. A. 743." The court then reviewed the matters severally, which then and now are urged as changing the written contract, and said of each: "This is another recognition of the written contract, and shows an attempt to carry out its terms instead of substituting a new one." Such is the law of this case. What facts are sufficient to show a change amounting to a substitution of a new contract is a question of law. Where the facts tending to show the change are undisputed, the question is for the court. If the facts are disputed, then an instruction should set out what facts, if found, would amount to such a change of the old as to make a new contract and leave it to the jury to determine the existence or nonexistence of such facts, and not to determine both the law and the facts. What we said in Martin v. Railroad, 161 S. W. 631, 632, not yet officially reported, is applicable here, with a slight change of the wording: The jury should not, in a case like this, be allowed to wander without chart or compass in search of a verdict and find a change of the contract on any theory that might be suggested to or imagined by it, but, on the contrary, should be limited and required to find those facts which, under the law, constitute such a change of a contract as to amount to a new one, and which are within the pleadings, and find support in the evidence. Sommers v. Transit Co., 108 Mo. App. 319, 324, 83 S. W. 268; Casey v. Bridge Co., 114 Mo. App. 47, 65, 89 S. W. 330; Nagel v. Transit Co., 169 Mo. App. 284, 288, 152 S. W. 621; Allen v. Transit Co., 183 Mo. 411, 81 S. W. 1142; Duerst v. Stamping Co., 163 Mo. 607, 63 S. W. 827; Miller v. United Railways, 155 Mo. App. 528, 546, 164 S. W. 1045.

3. A more serious question arises, however, on the validity and sufficiency of the defense pleaded and relied on by defendant, and on which he doubtless won before the jury. The answer sets up as a defense for refusing to pay for the tombstone ordered and agreed to be paid for by defendant in writing, and which plaintiff manufactured and delivered at the cemetery designated, the following: "Now at this day comes the defendant herein, and for answer to plaintiff's petition denies each and every allegation therein contained, except that he signed the instrument sued on. Defendant, further answering, states that his wife died on or about the ____ day of ____, 1911; and within a day or so after her death plaintiff appeared at the home of defendant and solicited him to purchase a tombstone or rock for the grave of the deceased wife of the defendant; that defendant refused to purchase a stone at that time, and stated to plaintiff that he did not know what kind of a stone that he would want, and that he would not give plaintiff a contract for one, whereupon plaintiff falsely and fraudulently represented and stated to defendant that he wanted his post office address and signature so that he could write him in due time and make inquiry of him as to his intentions about purchasing a stone, and presented to defendant the instrument sued on for his signature, whereupon defendant, relying upon said false and fraudulent representations and statements of plaintiff as aforesaid, signed the instrument sued on, with the express agreement and understanding then and there had with plaintiff that plaintiff would cross and mark out all that portion of said instrument in print above the...