Heagy v. Cox

• Decision Date: 08 June 1915
• Citation: 177 S.W. 684,191 Mo.App. 377
• Parties: L. W. HEAGY, Appellant, v. J. F. COX, Respondent
• Court: Missouri Court of Appeals

177 S.W. 684

191 Mo.App. 377

L. W. HEAGY, Appellant, v. J. F. COX, Respondent

Court of Appeals of Missouri, St. Louis

June 8, 1915

Appeal from Iron Circuit Court.--Hon. E. M. Dearing, Judge.

REVERSED AND REMANDED.

Judgment reversed and cause remanded.

George Munger and O. L. Munger for appellant.

(1) Since this suit is based upon an Indiana contract we think the lex loci contractus governs. 9 Cyc. 672; Johnson v Gawtry, 83 Mo. 339; Kerwin v. Doran, 29 Mo.App 397. (2) This suit being between the immediate parties the actual consideration can be inquired into by parol. R. S. Ind., 1908, sec. 7464; Rockhill v. Spraggs, 9 Ind 30; McMahon v. Stewart, 23 Ind. 590; Jones v. Noe, 71 Ind. 368; Levering v. Shockey, 100 Ind. 558; Cuthrell v. Cuthrell, 101 Ind. 375; Hayes v. Peck, 107 Ind. 389; Buscher v. Knapp, 107 Ind. 340; Rabsuhl v. Lack, 35 Mo. 316; Fontaine v. Bank, 57 Mo. 561; McConnell v. Brayner, 63 Mo. 461. (3) The contract sued on was an oral one, only a portion of which was reduced to writing. Hence, the unwritten portion can be proven by parol evidence, and can be enforced at law. Headrick v. Wiseheart, 57 Ind. 129; Singer Mfg. Co. v. Forsyth, 108 Ind. 338; Bever v. Bever, 144 Ind. 157; Lowry v. Downey, 150 Ind. 364; Penn. Co. v. Dolan, 6 Ind.App. 109; Rollins v. Claybrook, 22 Mo. 405; Moss v. Green, 41 Mo. 390; O'Neil v. Crain, 67 Mo. 250; Black R. Lbr. Co. v. Warner, 93 Mo. 374; Harvey Lbr. Co. v. Herriman Lbr. Co., 39 Mo.App. 214. (4) The unperformed portion of the contract sued on is in addition to and consistent with the assignment. Hence, it is provable by parol and enforceable at law. Stearns v. Dubois, 55 Ind. 257; Singer Mfg. Co. v. Forsyth, 108 Ind. 338; Lowry v. Downey, 150 Ind. 364; Maris v. Iles, 3 Ind.App. 579; Laudman v. Ingram, 49 Mo. 212; McConnell v. Brayner, 63 Mo. 461; Hickman v. Hickman, 55 Mo.App. 303; Pickett v. Mercer, 106 Mo.App. 689. (5) Where a written contract does not purport to contain all the stipulations between the parties, parol evidence is permissible to show additional stipulations if not inconsistent with the writing. Singer Mfg. Co. v. Forsyth, 108 Ind. 334; Lash v. Parlin, 78 Mo. 391; Ellis v. Bray, 79 Mo. 227; Gardner v. Mathews, 81 Mo. 627; Miller v. Goodrich Bros., 53 Mo.App. 430. (6) If this contract is not a parol contract with a portion only reduced to writing, as contended in paragraph 3 of this brief, then the contract sued on is a distinct collateral contemperaneous agreement independent of and not varying the written contract of assignment, and may be shown by parol and recovered upon. Bowen v. Bowen, 90 Mo. 184.

J. L. Fort and J. M. Cook for respondent.

(1) The contract being in writing, and there being no pretense to fraud, accident or mistake, is conclusively presumed to contain the entire agreement of the parties. Boggs v. Company, 171 Mo. 282; Dexter v. McDonald, 196 Mo. 373; Jackson v. Company, 54 Mo.App. 636; Metropolitan v. Company, 137 S.W. 633. The law may or may not have required the assignment of this contract to have been in writing, but whether it did require it or not, it was in fact made in writing. And having been reduced to writing the law not only presumes, but conclusively presumes, that the written contract is the receptacle for and contained all the terms of the agreement, and prevents the introduction of parol evidence in any manner to change, add to or take from the written contract, except where the written contract itself shows upon its face that parts of it were omitted therefrom. Reigart v. Company, 217 Mo. 154. There is nothing on the face of the written contract of assignment, signed by defendant in writing and accepted by plaintiff in writing which shows than any part of the contract was omitted therefrom, hence parol testimony was not admissable to show prior agreement between the plaintiff and defendant by which defendant promised to pay plaintiff $ 2000 in addition to the consideration specified in the assignment. (2) When the consideration specified in the written assignment is examined in connection with the consideration specified in the contract assigned, it is plain that Cox as the original contractor, and after him Heagy, his assignee, was to get 5061 shares of the capital stock of the company for paying the debt and erecting the improvements specified in the assigned contract. In other words the consideration is clearly and unequivocally contractual. Mr. Elliot in his work on 1 Evidence, sec. 582, says: "So, the recital of consideration in a writing is generally a mere formal matter, which is regarded as in the nature of a receipt, and may be varied or contradicted by parol evidence. But when these reasons do not apply to the particular written contract in question, as, for instance, when the consideration is contractual, parol evidence thereof is generally inadmissable, the right to introduce parol evidence to vary the consideration expressed in the instrument or to prove that it was never paid does not authorize the introduction of such evidence to defeat or change the contract itself." Laclede Co. v. Freudenstein, 179 Mo.App. 175; Welsh v. Edmission, 46 Mo.App. 282; Blakely v. Benecke, 59 Mo. 193; Montany v. Brock, 10 Mo. 506; Slattery v. Bates, 8 Mo.App. 595; State v. Hoshaw, 98 Mo. 358; Halferty v. Scearce, 135 Mo. 428; Culbertson v. Young, 86 Mo.App. 277; Williams v. Company, 85 Mo.App. 103; Davis v. Gaun, 63 Mo.App. 425; Klein v. Isaacs, 8 Mo.App. 568; Williams v. Company, 158 S.W. 967; Co. v. Grate, 102 N.E. 155; Bluoner v. Schmidt, 146 N.W. 751; Goldenberg v. Taglins, 105 N.E. 883; Gill v. Ruggles, 81 S.E. 519; Luckenbach v. Thomas, 166 S.W. 99; 17 Cyc. 632, 635, 661; Schneider v. Turner, 130 Ill. 28; Stillings v. Timmins, 25 N.E. 50; McCrea v. Purmort, 16 Wend. (N. Y.) 460; Barter v. Greenleaf, 65 Me. 405; Ruggles v. Clare, 26 P. 25; Morse v. Shuttuck, 17 Am. Dec. 419; Belden v. Seymour, 21 Am. Dec. 661; Reisterer v. Carpenter, 24 N.E. 371; Baum v. Lynn, 18 So. 428; Gelpcke v. Blake, 19 Iowa 263; Hendrick v. Crowley, 31 Cal. 471; Jackson v. Company, 54 Mo.App. 636; McDaniel v. Company, 148 S.W. 464; Metropolitan v. Company, 137 S.W. 633.

ALLEN, J. Reynolds, P. J., and Nortoni, J., concur.

OPINION

ALLEN, J.

--This is an action to recover the sum of $ 2000 which it is alleged the defendant agreed to pay plaintiff in consideration of the agreement and undertaking by plaintiff to fulfill, in defendant's stead, the terms of a certain written contract existing between defendant and a corporation, the written contract having been assigned by defendant to plaintiff, the latter assuming all of the obligations of defendant thereunder and becoming entitled to the benefits thereof. The cause was tried by the court without the intervention of a jury, resulting in a judgment for the defendant from which plaintiff prosecutes this appeal.

On December 10, 1906, the defendant entered into a contract in writing with the Grand Valley Land and Mineral Company, a corporation, whereby defendant agreed to do certain irrigation and reclamation work in the State of Utah and to assume and pay certain liabilities of the corporation amounting to approximately $ 15,000, for which he was to receive a certain amount of the capital stock of the corporation. Defendant did not complete the work under this contract, and did not pay the liabilities of the corporation so assumed by him; and on February 4, 1907, this contract was assigned to plaintiff by the following assignment indorsed thereon, viz:

"For value received the within contract and all of our rights thereunder are hereby assigned, sold and transferred to L. W. Heagy, who, by the acceptance thereof, assumes all our liabilities thereunder. It is the intention however that the contract between the undersigned C. C. Brown and the Grand Valley Land and Mineral Company mentioned in page three of this contract shall remain in force, and said Heagy hereby assumes the carrying out of the same as in said contract agreed by J. F. Cox."

This assignment was signed by defendant and C. C. Brown, named therein, and accepted in writing by plaintiff. Brown was not directly a party to the original contract, but was in the corporation's employ and the contract provided that defendant would continue the employment.

Plaintiff's evidence goes to show that the contract between him and the defendant, by virtue of which this assignment was made, consisted of an oral agreement which was never reduced to writing. The testimony adduced in plaintiff's behalf tends to show that the defendant, admitting his inability to carry out the terms of his contract with the corporation, agreed, among other things, to advance and pay to plaintiff the sum of $ 2000 if the latter would assume all of his obligations thereunder. This appears from plaintiff's testimony and that of two witnesses who were present at the time. Defendant's evidence consists of some brief testimony on his part, and the written contract between defendant and the corporation with the above-mentioned assignment endorsed thereon. Defendant was asked by his counsel whether "there was ever any consideration passed" between him and plaintiff other than that mentioned in the written assignment, and he answered: "There was not." This was all of defendant's testimony in chief relative to the transaction, and he was not cross-examined by plaintiff's counsel.

At the close of the case the court gave a declaration of law declaring that "the consideration expressed in said assignment is, and was, contractual, and that the contractual quality of said consideration must be ascertained by an examination of the consideration expressed in the assignment and in the contract assigned, and if the...