Hefernan v. Neumond

• Court: Missouri Court of Appeals
• Writing for the Court: ALLEN, J.
• Citation: Hefernan v. Neumond, 198 Mo. App. 667, 201 S.W. 645 (Mo. App. 1918)
• Decision Date: 11 February 1918
• Parties: J. F. HEFERNAN, trading as UNITED STATES SUGAR FEED CO., Respondent, v. KARL NEUMOND, et al., Appellants

201 S.W. 645

198 Mo.App. 667

J. F. HEFERNAN, trading as UNITED STATES SUGAR FEED CO., Respondent, v. KARL NEUMOND, et al., Appellants

Court of Appeals of Missouri, St. Louis

February 11, 1918

Appeal from the Circuit Court of the City of St. Louis.--Hon. Leo. S. Rassieur, Judge.

Affirmed.

Judgment affirmed.

Greensfelder & Levi for appellants.

(1) (a) The contract sued upon was not admissible in evidence, being without consideration, lacking mutuality and unilateral in form, though signed by both parties. Campbell v. Handle Co., 117 Mo.App. 19; Cold Blast Transportation Co v. K. C. Bolt & Nut Co., 114 F. Rep. 77; Iron & Rail Co. v. Railroad, 148 Mo.App. 173; Rehm-Zeiher Co. v Walker Co., 160 S.W. 777; Brown Paper Box Co. v Mercantile Co., 190 Mo.App. 584; Hudson v Browning 264 Mo. 58-65; Hill v. Hunter, 157 S.W. 247; Mutual Film Corp. v. Morris & Daniel, 184 S.W. 1060. (b) Part performance in this case did not make up for want of mutuality in the contract. Morrow v. Southern Express Co., 101 Ga. 810; American Refrigerator Transfer Co. v. Chilton, 94 Ill.App. 61; Savannah Ice Delivery Co. v. American Refrigerator Transit Co., 110 Ga. 142; Gray v. Hinton, 7 F. 81. (2) Defendants' peremptory instruction should have been given for the following reasons: (a) Plaintiff having aided in and insisted upon an illegal method in the performance and execution of the agreement sued upon cannot compel enforcement of the contract at this time: Materne v Horwitz, 101 N.Y. 469; Cavan v. Milburn, L. R., 2 Ex. 230; Gaylord v. Soragen, 32 Vt. 110; Aiken v. Blaisdell, 41 Vt. 655; Fisher v. Lord, 63 N.H. 514; Fineman v. Sacks, 33 Kan. 621; Banchor v. Mansel, 47 Me. 58; Church v. Proctor, 66 F. 240; (b) There being an admitted violation of a positive statute plaintiff cannot recover on account of breach of contract. Hagerty v. St. Louis Ice Mfg. & Stor. Co., 143 Mo. 238; St. Louis Fair Ass'n v. Carmody, 151 Mo. 566; Curran v. Downs, 3 Mo.App. 468; Buckingham v. Fitch, 18 Mo.App. 91; Rice Bros. & Nixon v. National Bank of Commerce, 98 Mo.App. 696; Tandy v. Commission Co., 113 Mo.App. 409; In re Canfield, 190 F. 266; Genessee Valley Milk Products Co. v. Jones Corp., 124 N.Y.S. 1009; 2 Elliott on Contracts, secs. 648 and 656; Small & Co. v. Commonwealth, 134 Ky. 272; Williston on Sales, sec. 675, p. 1142; Cowan v. Milburn, L. R. 2 Ex. 230. (c) The question of intent is not material in violating pure food statutes. State v. Griffith, 67 Mo. 287; Beckham v. Nacke, 56 Mo. 546; State v. Bruder, 35 Mo. 475, 1 Cyc. 943; 1 Amer. & Eng. Enc. of Law, 744, 12 Cyc. 148; 8 Amer. & Eng. Enc. of Law, 201; Mullen v. State, 82 Ala. 42; State v. Zichfeld, 34 L.R.A. 784; State v. Southern Ry. Co., 41 L.R.A. 246; State v. Scoggins, 10 L.R.A. 542; State v. McLean, 121 N.C. 589, 42 L.R.A. 721; State v. Edwards, 69 L.R.A. 667; People v. Roby, 52 Mich. 577; Jaycox v. U.S., 107 F. 938; People v. Laesser, 79 N.Y.S. 470; People v. Kibler, 106 N.Y. 321; U.S. v. Bayaud, 16 F. 376; Todd v. Ferguson, 161 Mo.App. 624. (d) Where an act forbidden by law is intentionally done the criminal intent is thereby consummated. State v. Silva, 130 Mo. 464; State v. Johns, 124 Mo. 385; State v. Gregory, 170 Mo. 606; State v. Nocton, 121 Mo. 554; State v. Beard, 126 Mo. 554; Inhabitants of Salem v. Inhabitants of Lynn, 13 Metcalf, 545; Haynes v. Rutter, 24 Pick, 242; Toal v. City of N.Y., 69 N.Y.S. 454; Gale v. Insurance Co., 41 N.H. 170; Ballard v. Lockwood, 1 Daly, 164; Harris & Mitchell v. Amoskeag Lumber Co., 97 Ga. 469; Palmer v. Pinkham, 33 Me. 34; Burlingame v. Rowland, 77 Cal. 317; Hunds v. Keith, 57 F. 1013; Conemaugh Bwg. Co. v. Bennett, 60 Pa. S.Ct. 543; Blandi v. Pelligrini, 60 Pa. S.Ct. 552. (e) If plaintiff cannot establish his case otherwise than through the medium of an illegal transaction to which he himself was a party the contract will be held illegal. 2 Elliott on Contracts, sec. 678, p. 33; Harrison v. McCluney, 32 Mo.App. 481-487; Tyler v. Larimore, 19 Mo.App. 445, 454; Kitchen v. Greenabaum, 61 Mo. 110, 114; Bick v. Seal, 45 Mo.App. 475, 477; Friend v. Porter, 50 Mo.App. 89, 92; Sumner v. Sumner, 54 Mo. 340, 346; Cherokee Strip Live Stock Ass'n v. Cass Land & Cattle Co., 138 Mo. 394, 406; Pendleton v. Asbury, 104 Mo.App. 723. (3) Whether a contract is contrary to public policy is a question of law to be determined from the circumstances of the case. Spangenberg v. Spangenberg, 126 P. 382; Weber v. Shay, 56 Ohio St. 116; Detroit Salt Co. v. National Salt Co., 134 Mich. 121; Kuhn v. Buhl, 251 Pa. St. 370, 9 Cyc. 483. (4) The court erred in permitting plaintiff to testify as to his future intention, as same was in the form of a self-serving statement. Plaintiff's intentions were all expressed in correspondence and the court should have directed the jury that as a matter of law that if intent was a material feature of the controversy, that the letters were sufficient to establish intent upon the part of the plaintiff to violate the law. Lumber Co. v. Railroad, 243 Mo. 244; Spiva v. Osage Coal & Mining Co., 88 Mo. 75; Powell v. Powell, 23 Mo. 373; State v. F. Lefaivre, 53 Mo. 471; Furber v. K. C. Bolt & Nut Co., 185 Mo. 301; Jackson v. Hardin, 83 Mo. 175; Burress v. Blair, 61 Mo. 140; Henry v. St. Louis, Kansas City & Northern Ry. Co., 76 Mo. 293; Pemberton v. Dooley, 43 Mo.App. 177; Ford v. Dyer, 148 Mo. 528; Davies v. Peoples Ry. Co., 159 Mo. 1; Michael v. St. Louis M. F. Ins. Co., 70 Mo.App. 26. (5) Having permitted plaintiff to testify as to his intention, defendants should have been permitted to prove by the 1909, 1910 and 1911 contracts and correspondence pertaining thereto for the purpose of showing that plaintiff's previous conduct was inconsistent with his intent as to his future conduct then expressed. Bainbridge v. State, 30 Ohio State, 274; People v. Bidleman, 104 Cal. 613; Toll v. State of Fla., 40 Fla. 172; People v. McLaughlin, 37 N.Y.S. 1013; Manheimer v. Harrington, 20 Mo.App. 301; Owens v. Railroad, 120 Mo.App. 327; Dodge v. Knapp, 112 Mo.App. 525; Whitman v. Supreme Lodge Knights and Ladies of Honor, 130 Mo. 48; Davis v. Bovies, 141 Mo. 241; State v. Spray, 174 Mo. 578; State v. Bailey, 190 Mo. 280; State v. Spaugh, 200 Mo. 594; State v. Wilson, 223 Mo. 168; Powell v. Railroad, 229 Mo. 272; State v. Hyde, 234 Mo. 224. (6) The court's instruction on the question of measure of damages did not properly declare the law. Where delivery is required to be made by installments the measure of damages will be estimated by the value at the time delivery should have been made. Sagola Lumber Co. v. Chi Title & Trust Co., 121 Ill. 297; Mo. Furnace Co. v. Cochran, 8 F. 463; Hewson-Herzog Supply Co. v. Minn. Brick Co., 55 Minn. 534; Mayne on Damages, sec. 206; Brown v. Muller, 7 Ex. 324; Henry v. St. Louis, Kansas City & Northern Ry. Co., 76 Mo. 288, 293; Pemberton v. Dooley, 43 Mo.App. 177; Ford v. Dyer, 148 Mo. 540; Davies v. Peoples Ry. Co., 159 Mo. 1; Michael v. St. Louis M. F. Ins. Co., 70 Mo.App. 26. (7) Plaintiff having admitted that there was a market value of the character of feed in controversy, the instruction given as to measure of damages was not correct. The measure of damages, in a case where there is a market value of goods, is the difference between the contract price and the market value of the goods at the time and place when and where by the contract they were to be delivered, if the goods have such a market value, and, where they have no market value, the difference between the contract price and reasonable value of the goods. Consumers' Glue Co. v. Samuel Binghams Son Mfg. Co., 193 Mo.App. 90. (8) Where evidence inadmissible under the petition was received, defendant is entitled to introduce evidence to controvert same. Hays v. Metropolitan Street Ry. Co., 182 Mo.App. 393; Blair v. Marks, 27 Mo. 579; Bethany Savings Bank v. Cushman, 66 Mo.App. 102; Trustees of Christian Univ. v. Hoffman, 95 Mo.App. 498. (9) Plaintiff was guilty of misbranding and adulterating the feed manufactured in Missouri and used by him in interstate commerce. United States v. 7 cases Echman's Alterative, 36 S.Ct. 190; United States v. 40 bbls. and 20 kegs of Coca Cola, 36 S.Ct. 573. (10) It is the court's duty to tell the jury the legal effect of the contents of letters where they are unambiguous. St. Paul Fire & Marine Insurance Co. v. Garnier, 196 S.W. 980; Woldert Grocer Co. v. Pillman, 176 S.W. 457; Mount v. Neighbors' Implement & Vehicle Co., 189 S.W. 614; United Brotherhood of Carpenters, etc., v. Luck, 189 S.W. 1036; Farmers' Union Merc. Co. v. Pinkerton, 194 S.W. 709; Radford and Guise v. Practical Premium Co., 188 S.W. 562; Thompson on Trials, secs. 1065, 1068. (11) Where, at the execution of a writing an oral stipulation is entered into, or a condition is annexed upon faith of which the writing is executed, parol evidence is admissible, though it materially varies the terms of the contract. Excelsior Saving Fund & Loan Assn. v. Fox, 98 A. 593; Ware v. Allen, 128 U.S. 590, 32 Law Ed. 563; Bowser & Co. v. Fountain, 128 Minn. 198, L.R.A. 1916B, 1036; Beach v. Nevins, 162 F. 129, 18 L.R.A. (N.S.) 288; Simrall v. Amer. Multigraph Sales Co., 158 S.W. 172 Mo.App. 384, 388; St. Joe Hay & Feed Co. v. Brewster, 195 S.W. 71. (12) Evidence should not be excluded as irrelevant which would have a tendency, however remote, to establish the probability and improbability of the fact in controversy. Wood v. Finson, 91 Me. 280, 284; Livingston v. Stevens, 122 Ia. 62, 67; Mutual Life Ins. Co. v. Armstrong, 117 U.S. 591, 29 Law Ed. 997; Gardner v. Meeker, 169 Ill. 44; Slater? Meyers Co. v. De Moiest Spoke & Handle Co., 94 Ga. 687; Eames v. Kaiser, 142 U.S. 488, 35 Law Ed. 1091; Davis v. Vories, 141 Mo. 234, 241; Whitmore v. Supreme Lodge Knights & Ladies of Honor, 100 Mo. 36, 48; Smith v. National...