Hackney v. Hargrove

• Decision Date: 27 February 1924
• Docket Number: No. 3414.,3414.
• Citation: 259 S.W. 495
• Parties: HACKNEY v. HARGROVE
• Court: Missouri Court of Appeals

259 S.W. 495

HACKNEY v. HARGROVE

No. 3414.

Springfield Court of Appeals, Missouri.

February 27, 1924.

Appeal from Circuit Court, Barton County; B. G. Thurman, Judge.

Action by S. L. Hackney against E. B. Hargrove. Judgment for plaintiff, and defendant appeals. Reversed and remanded.

Martin & Martin and H. W. Timmonds, all of Lamar, for appellant.

E. L. Moore, of Lamar, for respondent.

FARRINGTON, J.

The trial court directed a verdict for plaintiff, judgment was entered thereon, and defendant appeals. His three assignments all go to the same question, which is: Did the court err in the exclusion of defendant's offer to show that in a sale of interest between the parties this account was a part of the consideration which had by reason of such sale been fully paid? It appears that plaintiff and defendant had been partners and each owed personal accounts to the firm as shown by the firm's books. The plaintiff, having bought out defendant's interest in the firm, brought this suit for the collection of the account which stood on the firm's books as a debt. The defense is that the account which defendant owed prior to dissolution and sale of his interest to plaintiff entered into the consideration for the sale of his half interest In the property of the firm.

The petition declares on an account for $295.15. The answer denies that defendant owes the account, and pleads that when plaintiff purchased the interest of defendant in the business defendant's indebtedness, if any, to the then partnership was then and there by the terms of such sale fully paid and settled between the plaintiff and defendant, and that by reason thereof the defendant owes plaintiff nothing.

The account was admitted by defendant on trial. Plaintiff's evidence showed that plaintiff bought defendant out, and that on that day a memorandum of contract of sale was made, and it was introduced in evidence without objection, and is as follows:

                              "Lamar, Missouri, 2-26, 1923
                

"Articles of agreement, by and between S. L. Hackney, of first part, and E. B. Hargrove, of second part, witnesseth:

"Party of first part has this day bought of party of the second part, his entire interest in the Hargrove Mfg. Co., and that said second party's name shall not be used in any way after turning over to second party his note and trust deed.

"Party of second part agrees to give party of first part 10 days to vacate buildings where mill is now operated and remove all machinery and stock now belonging to said company.

                               "[Signed] L. S. Hackney
                                        "E. B. Hargrove."
                

Defendant's counsel began on the cross-examination of plaintiff to try to show the conversations leading up to the written contract, but the court held this incompetent. Then counsel made their offer of proof, which is as follows:

Mr. Martin: "I will make the record on this: Counsel for the defendant seek to show—offer to show by their witness—that the plaintiff, the witness now on the stand, and the defendant, made a deal orally, by which the plaintiff became the owner of the business, prior to the time that the sale was consummated by their oral agreement; that the deal was made in this way: That the plaintiff insisted that a proposition be made, give or take; that the defendant at that time had made a proposition that he would accept or thought the defendant could accept. The defendant then said: `Now, what is the proposition if I step out'—no—Mr. Hackney says, `If you buy the stock you step out with a clean slate and take nothing, and if I buy the business'—no—`If Hargrove buys the business, then I step out with a clean slate and take nothing.' Then Mr. Hargrove says, `Well, you have bought?' Mr. Hackney says, `I thought you was going to take it.' `No,' he says, `you bought.' After the deal was closed, then Mr. Hargrove says, `Now, I want a memorandum that I am to get my papers, and my name is not to be used in this business, and the right to move the machinery.' And the paper introduced in evidence says, `I have this day bought,' and don't say that I am now buying, or negotiating, or anything; it says, `I have this day bought.'" Court: "Objection sustained."

Mr. Martin: "We except."

The court, rejecting defendant's offer, directed a verdict for the plaintiff, the defendant having admitted the correctness of the items of the account.

To reverse this judgment, appellant relies on the following propositions of law, which are supported by the authorities cited:

"The rule forbidding the explanation or enlargement of the terms of a written contract by parol evidence does not apply where it shows on the face that it is incomplete and does not purport to be a complete expression of the entire contract." Mosby v. Smith, 194 Mo. App. loc. cit. 27, 186 S. W. 49; Koons v. St. Louis Car Co., 203 Mo. 227, 101 S. W. 49; Brown v. Bowen, 90 Mo. loc. cit. 189, 2 S. W. 398; Bagnall v. Brewing Co., 203 Mo. App. 635...