Huse v. McQuade

• Decision Date: 31 March 1873
• Citation: 52 Mo. 388
• Parties: WILLIAM L. HUSE, et al., Respondents, v. GEORGE MCQUADE, Appellant.
• Court: Missouri Supreme Court

52 Mo. 388

WILLIAM L. HUSE, et al., Respondents,

v.GEORGE MCQUADE, Appellant.

Supreme Court of Missouri.

March Term, 1873.

Appeal from St. Louis Circuit Court.

Stewart & Wieting, for Appellant, cited: Weston vs. Emes, 1 Taunton, 115; Wright vs. Smith, 16 Gray, 499.

H. Barry, for Respondents, cited: McDonald vs. Longbottom, 1 Ellis & Ellis, 977; 1 Greenleaf Ev., §§ 285, 297.

EWING, Judge, delivered the opinion of the court.

This was an action to recover a balance claimed to be due for ice sold and delivered by plaintiff to defendants. The answer admitted the delivery of the ice, and that the price had not been paid; and it is further alleged, that a contract in writing was entered into between the parties to the suit, by which the plaintiffs were to deliver to the defendant a certain quantity of ice during the year 1870 at a stipulated price, and that plaintiffs failed to perform the contract on their part, by reason of which the defendant was damaged $1,000. Plaintiffs say in reply, that the contract referred to in the answer, although bearing date May 1, 1870, was actually entered into verbally on the 13th of April of that year, and before any ice was delivered, with the understanding that it was thereafter to be reduced to writing, and that defendant was to give security for performance on his part; that they commenced the delivery of the ice on the 14th of April, and continued to so deliver it until they had fully complied with the contract, except as to a small quantity about which there is controversy here.

The trial, which was by a jury, resulted in a verdict and judgment for the defendant for $140. This judgment was reversed at General Term, and the defendant brings the cause to this court by appeal.

The only ruling of the court assigned for error is in refusing the offer of plaintiff to show that the contract was made April 13th 1870, by parol, and that it was to be subsequently reduced to writing, and that ice was delivered until it was reduced to writing. The contract was read in evidence, and bears date May 21, 1870. It provides substantially, that the plaintiffs, in consideration of a certain price therein named, were to deliver to the defendant daily for his trade, as he required it, 200 tons of ice during the year 1870. This suit is for a balance claimed to be due for ice delivered in October and November.

The evidence offered did not tend to show a different contract from that read in evidence, nor to contradict it. Its effect was to...