Evans v. Western Brass Manufacturing Company

• Decision Date: 11 December 1893
• Parties: Evans et al. v. Western Brass Manufacturing Company, Appellant
• Court: Missouri Supreme Court

24 S.W. 175

118 Mo. 548

Evans et al. v. Western Brass Manufacturing Company, Appellant

Supreme Court of Missouri, First Division

December 11, 1893

Appeal from St. Louis City Circuit Court. -- Hon. Daniel Dillon Judge.

Affirmed.

Lubke & Muench for appellant.

(1) The trial court erred in admitting, against defendant's objections, the testimony that the marble trade would understand defendant's order to mean that the pieces were not to be of the required thickness when polished, that the plaintiffs so understood the order, and that plaintiffs were under no obligations to fill any more of the order than they saw fit. Parol evidence is not admissible to prove how a written contract or instrument was understood by one of the parties in an action upon it at law where no fraud is alleged or shown, citing Bunce v. Beck, 43 Mo. 266; Bigelow v. Collamore, 5 Cush. 266; Harper v Gilbert, 5 Cush. 417; Gould v. Norfolk, 9 Cush 338. The construction of a written instrument whose terms are not ambiguous is for the court unaided by expert testimony. In such cases the expert testimony is a mere series of contradictory criticisms on the interpretation of language, and is altogether valueless. Mathews v. Danahy, 26 Mo.App. 660. Evidence of a prior course of dealing between the parties is not admissible to supply interpretation of a contract plain in its terms. Conrad v. Fisher, 37 Mo.App. 352. (2) The order called for marble ready to "go in at the proper places," and required the slabs, partitions, backs and bases to be of certain thickness. There was no ambiguity in this language. The court therefore erred in refusing refusing defendant's fourth instruction which declared that a failure by plaintiff to furnish marbles ready for use and of the specified thickness was a breach of plaintiff's contract, and the court erred in awarding plaintiff judgment for the full amount claimed, regardless of defendant's refusal to accept certain of the slabs, partitions and bases, and regardless of the testimony showing expense incurred by defendant because of this breach of plaintiff's contract. Cockrill v. Kirkpatrick, 9 Mo. 697; Bunce v. Beck, 43 Mo. 266; Murdock v. Ganahl, 47 Mo. 135; State to use v. Lefaivre, 53 Mo. 470; Buress v. Blair, 61 Mo. 133; Fruin v. Railroad, 89 Mo. 397. (3) The defendant's order called for American or Georgia marble suitable for bases. And defendant having shown by evidence that the Rutland, Vermont, marble on account of its porosity was not suitable for this purpose, the trial court erred in refusing defendant's fourth instruction upon that branch of the case and erred in finding against defendant the full amount of plaintiff's invoice prices for the Vermont marble. County v. Wood, 84 Mo. 489. (4) The trial court should have sustained defendant's motion for a new trial for that the judgment is excessive.

George R. Lockwood for respondents.

(1) The court did not err in admitting the testimony objected to by defendant, and which tended to establish the trade understanding of specifications as to thickness of marble. Greenleaf on Evidence [13 Ed.], secs. 278, 280, 287, 292; Fruin v. Railroad, 89 Mo. 397; Singleton v. Ins. Co., 66 Mo. 63; Blair v. Cosby, 37 Mo. 313; Soutier v. Kellerman, 18 Mo. 509; Long Bros. v. J. K. Armsby Co., 43 Mo.App. 253; Connable v. Clark, 26 Mo.App. 162. (2) The court did not err in refusing the fourth instruction asked by defendant. (3) If the court concludes that the clerk erred in calculating interest and consequently that the finding and judgment of the trial court is for more than it should be, this court may enter such judgment as the trial court should have entered or respondents will, on the suggestion of the court, enter a formal remittitur of the excessive interest. The error complained of certainly does not so far affect the merits of the action as to justify a reversal of the case. Revised Statutes, 1889, secs. 2303, 2304; Greer v. St. Louis, 106 Mo. 454; Land Co. v. Hays, 105 Mo. 143; Kenny v. Railroad, 105 Mo. 270; Mellor v. Railroad, 105 Mo. 435; Smith v. Railroad, 92 Mo. 359.

OPINION

Black, P. J.

The plaintiffs are partners owning and operating marble mills at Baltimore, Maryland. The defendant is a corporation located at St. Louis, in this state, and engaged in the business of furnishing plumbers' supplies. The plaintiff brought this suit to recover a balance due upon an open account. A large part of the account is by defendant conceded to be correct. The contest arises out of three shipments made by the plaintiff to the Hussy-Day Company, under a letter from the defendant to the plaintiffs, dated the twenty-third of February, 1889.

The following are the material portions of that letter:

"We have forwarded you a diagram by mail to-day for a lot of marble work. Each slab is to be numbered, both backs and slabs, so that they will go in at the proper place. Ship direct to Omaha, Nebraska. You will notice each slab is numbered, and the plan shows whether it is on back or back and one end or back and two ends. Italian marble to be one and one-quarter inch, partitions and backs of urinals to be seven-eighths of an inch, and the bases two inches thick. These bases call for American or Georgia marble. A cheap grade of Italian marble will do just as well, if you have not got either of the above, only we have got to have that grade of marble, in order to meet the price we have bid on."

It appears that the slabs and other pieces, when polished and shipped to the Hussy-Day company, were not of the thickness specified in the letter. But it is stated in the bill of exceptions that the plaintiff produced evidence tending to show that the marble pieces, when sawed, and before polished, were of the specified thickness; and that in the trade a specified thickness means the thickness of the slabs as sawed and before polished. On this point defendant produced evidence tending to show that there was no understanding in the trade that an order for marble of a specified thickness, prepared for immediate use, means the thickness when sawed into slabs and before polished.

It is also stated in the bill of exceptions that the bases for urinals were made of Rutland, Vermont, marble; that "Rutland, Vermont" marble and American marble mean the same thing; that plaintiff produced evidence tending to show that Vermont marble is suitable for such purposes. On the other hand, the defendant produced evidence tending to show that Rutland, Vermont, marble is unfit for urinal bases, because it is too porous.

It appears the Hussy-Day Company refused to accept the marble pieces now in question, and left them with the carrier. The defendant was required to supply other pieces for those rejected. There is no evidence as to the terms of the contract between the defendant and the Hussy-Day Company.

The defendant objected to some, but not all, of the evidence produced by the plaintiffs tending to show that an order for polished marble of a specified thickness means in the trade the thickness when sawed. The defendant also asked the court to instruct that the plaintiffs were, under the letter, bound to furnish marble pieces of the thickness specified in the letter when prepared and finished for use, and that defendant had a right to reject the pieces not of such thickness whenever polished. The court refused this instruction. As the refusal of the instruction and the objection to the evidence present the same question, they may be considered together.

The general rule undoubtedly is, that parol evidence cannot be admitted to contradict, add to, or vary a written contract and it is the duty of the court to construe the writing. Bunce, Adm'r, v. Beck, Ex'r, 43 Mo. 266; Black River Lumber Co. v. Warner, 93 Mo. 374, 6 S.W. 210; State ex rel. Yeoman v....