Hartley v. Werner

• Decision Date: 03 July 1917
• Docket Number: No. 14637.,14637.
• Citation: 196 S.W. 1072
• Parties: HARTLEY v. WERNER.
• Court: Missouri Court of Appeals

196 S.W. 1072

HARTLEY v.WERNER.

No. 14637.

St. Louis Court of Appeals. Missouri.

July 3, 1917.

Appeal from Circuit Court, Clark County; N. M. Pettingill, Judge.

"Not to be officially published."

Action by L. M. Hartley against Rudolph Werner.Judgment for defendant, and plaintiff appeals.Affirmed.

J. C. McCoid, of Mt. Pleasant, Iowa, and T. L. Montgomery, of Kahoka, for appellant.J. A. Whiteside, of Kahoka, for respondent.

BECKER, J.

Plaintiff sued to recover $405.77 interest and taxes paid by him which taxes and interest, by virtue of the covenants of warranty in the deed executed by defendant, plaintiff alleges should have been paid by defendant.From a judgment in favor of the defendant, the plaintiff appeals.

It appears that the interest and taxes sued for in this case were items involved in a trade between the parties hereto, in which there was an exchange of farms and personal property.

The defendant Werner claimed there was a defect in the title to the farm which was traded to him by the plaintiff, Hartley, also that the personal property he received in the trade was not as represented, and therefore refused to deliver possession of the farm which he in turn had traded to said Hartley.Hartley thereupon sued Werner for possession of said farm.Werner on his part sued Hartley for damages for alleged false and fraudulent representations in the trading of the farms and personal property.While these two suits were pending there was a settlement effected between plaintiff and defendant, which was evidenced by the following instrument in writing:

                          "April 28th, 1913
                

"This is to certify that the case of Rudolph Werner versus L. M. Hartley is this day settled by mutual consent, and defendant has paid the sum of $10.00 as settlement in full, and the plaintiff in the case is to give possession of the farm at once or by the first day of May of the current year.This settles all controversies of all kinds between Rudolph Werner and L. M.

Hartley.                 L. M. Hartley
                                        "Katie Werner
                                        "Rudolph Werner."
                

It is conceded by the defendant that by the terms of the original contract of exchange of farms and personal property the defendant was to pay the items of interest and taxes involved in this case, and defendant admits that he failed and refused to pay the interest and taxes, relying upon the above-mentioned settlement, and that plaintiff has paid same.

The plaintiff testified to the effect that when the settlement of April 28, 1913, as set out above, was entered into, there was nothing said by the parties thereto concerning the question of taxes and interest involved in the present suit, and that he did not pay the taxes and interest until May 6, 1913, some eight days after the settlement had been made; that the settlement merely disposed of the controversy set up in the two then pending suits mentioned supra.

The defendant himself, and also his daughter, testified that when plaintiff, Hartley, called at Werner's house on the day the settlement of April 28, 1913, was made, Hartley was endeavoring to obtain a settlement on the terms as appears in the settlement as finally signed; that, while Mrs. Werner was willing to accede thereto, the defendant, Werner, however, was unwilling to sign the said settlement; that thereupon Mrs. Werner, in the presence of Hartley, reminded Werner that if the settlement was not made he(Werner) would have the interest and taxes to pay, and that he did not have the money to pay them with; that Mrs. Werner then asked Hartley whether the settlement, if signed by them, "would settle everything, interest, taxes and all," and Hartley answered, "This settles everything;" and that defendant, Werner, then agreed to and did sign the said settlement.

The jury found for the defendant.

I.Appellant's first assignment of error is that the contract relied on by defendant is not ambiguous, and there are no latent ambiguities therein, and that therefore the court committed reversible error in permitting the defendant, over the objections of the plaintiff, to introduce parol evidence to the effect that the interest and taxes were included in the settlement of April 28, 1913.We must rule this point against the appellant.

We understand the rule of law to be that, where parties have entered into an agreement in writing, the terms of which set out a legal obligation, the object and extent of which is definitely stated, it is conclusively presumed that the entire agreement is embodied in such writing, and no parol evidence of conversations had between the parties at the time or prior to the completion of the agreement is admissible, as neither of the parties to the contract will be permitted to substitute a new or different contract for the one which was in point of fact agreed upon.Laclede Const. Co. v. Moss Tie Co., 185 Mo. 25, 84 S. W. 76;Tracy v. Iron Works Co., 104 Mo. 193, 16 S. W. 203.In connection with this there is, however, the rule of interpretation, adopted by our courts of last resort, that the circumstances surrounding parties at the time of entering into the contract may be shown where the subject-matter referred to is not entirely definite and clear, so that the court may be placed as near as possible in the situation of the contracting parties, and thus be able the better to determine in what sense the language used was intended by the parties to the contract.Laclede Const. Co. v. Moss Tie Co., supra;Williams v. Railroad, 153 Mo. 487, loc. cit. 534, 54 S. W. 689;Ellis v. Harrison, 104 Mo. 270, loc. cit. 279, 16 S. W. 198, 200.As was said in the Ellis Case, supra:

"The object of interpretation always is, or should be to reach the actual intention of the parties.We mean, of course, that intention as expressed in the writing they employ to portray it, and consistent with the latter.When the subject-matter to which such a writing refers is not entirely definite and clear, it is permissible, and obviously just, to receive in evidence a description of the circumstances of its execution that the court may be placed, as near as may be, in the situation of the contracting parties with a view the better to adjudge in what sense the language used was probably intended by them.Swett v. Shumway.102 Mass. 365[3 Am. Rep. 471];Keller v. Well, 125 Mass. 88[28 Am. Rep. 209]."

We...