Jungkuntz v. Carter

• Decision Date: 22 June 1923
• Docket Number: No. 17949.,17949.
• Citation: 254 S.W. 359
• Parties: JUNGKUNTZ v. CARTER.
• Court: Missouri Court of Appeals

254 S.W. 359

JUNGKUNTZ v. CARTER.

No. 17949.

St. Louis Court of Appeals, Missouri.

June 22, 1923.

Rehearing Denied July 14, 1923.

Appeal from St. Louis Circuit Court; Franklin Ferriss, Judge.

"Not to be officially published."

Action by Walter Jungkuntz against Frank Carter. Judgment for plaintiff, and defendant appeals. Affirmed.

George Barnett, of St. Louis, for appellant. George Eigel, of St. Louis, for respondent.

DAUES, J.

This action was begun in the justice court, thence taken to the circuit court of the city of St. Louis on appeal, where a jury was waived; on the trial there a judgment was had for plaintiff in the sum of $400 from which defendant has appealed.

A statement in the nature of a petition was filed in the justice court which alleges that plaintiff purchased from defendant four shares of the capital stock of the Safety Appliance Company, a Missouri corporation, on November 17, 1914, and that he paid therefor at the rate of $100 a share, or $400; that the defendant, who was president and principal stockholder of the corporation, in order to induce plaintiff to buy said stock, agreed in writing to guarantee to the plaintiff to purchase back such stock at par on May 5, 1915, if plaintiff was desirous of selling same at that time. It is then alleged that defendant wholly failed and refused to carry out his written contract of guaranty 'by which the plaintiff was damaged. The alleged contract of guaranty is attached to the statement, and is as follows:

                                       "November 1914
                

"Mr. Walter Jungkuntz, St. Louis, Mo.—Dear Sir: I hereby agree to guarantee said amount of stock purchased by you in the Safety Appliance Company, a corporation of St. Louis, Mo., on November 17, 1914, against any loss whatsoever due to the failure of the company. Also agree to take stock off your hands on May 5. 1915, at par value, from you, if you feel so disposed to sell at that date also agree to pay a 10 per cent. dividend on stock on May 5, 1915. The dividend to be figured on a 10 per cent, basis from the day said stock is issued.

                  "Yours very truly
                                  "[ Signed] Frank Carter
                  "FC/ES"
                

Plaintiff testified he bought the stock from defendant, and offered in evidence a certificate of stock in the Safety Appliance Company, being certificate No. 8, representing four shares of the capital stock, at a par value of $100 each, same being dated November 17, 1914, and signed by the president and secretary of the corporation. The certificate of stock was made out to plaintiff. Plaintiff then introduced the contract set out in the petition, and testified that he had bought an additional share of stock after November 17, 1914, so that hits entire holding was five shares of stock. This action, however, involves only the four shares bought November 17, 1914. Defendant introduced a letter written by plaintiff in April, 1915, a month before the time named in the guaranty, demanding that defendant take back his stock, all five shares, on May 5, 1915.

It is conceded that defendant refused to buy back the corporation stock from plaintiff. At the close of plaintiff's case, and again at the close of the whole case, plaintiff asked for a declaration of law in the nature of a demurrer to the evidence, which the court refused. This was the only declaration of law asked by either putty, and no statutory finding of facts was requested. The defendant filed no answer and asked no declaration of law beyond the demurrer to the evidence. The defendant, however, clearly indicated his theory of defense, and set his battle lines distinctly in the trial court, and that defense is that the purported contract, made the basis of this suit, is insufficient and inadequate to meet the requirements of section 2170, a. S. 1910, known as the statute of frauds, in that the memorandum does net set forth the necessary essentials to satisfy the requirements of said statute, and accordingly that the court erred in allowing oral testimony to supply what defendant deems omitted elements of the contract. Appellant makes other points here, but we must decide this case upon the theory advanced by the defendant, and upon which the case was tried. below. Howell v. Jackson County, 202 Mo. 403 loc. cit. 414, 171 S. W. 342; Earls v. Earls (No. App.) 182 S. W. 1018. Therefore the sole question before us is whether the alleged contract meets the requirements of the third clause of the statute of frauds covering contracts for sale of goods.

The rule is well established that a contract which the statute of frauds requires to be in writing must, as to all its essentials, be evidenced by such writing, and no essential part may be supplied by oral evidence. The case of Rucker v. Harrington., 52 Mo. App. 481, seems to be the leading case establishing this principle. See, also, Ringer v. Holtzclaw, 112 Mo. 519, 20 S. W. 800; Arky v. Commission Co., 185 Mo. App. 241 loc. cit. 24S, 170 S. W. 353.

Appellant insists that the writing is not sufficient under the statute of frauds because, first, it does not provide for a definite number of shares of stock to be sold; secondly, it contains no definition of the purchase price to be paid, and therefore the writing does not fall within the statute. It becomes our duty, then, to measure this memorandum in the light of the authorities to determine whether same falls within or without the statute.

It is true, the memorandum does not specifically set out the purchase price. It does, however, stipulate that the stock was to be taken back at its par value, and from that a means is provided of determining the exact amount constituting the price. A more serious question, however, arises as to the number of shares of stock involved not being specified, and it is insisted by appellant that oral testimony was necessary to piece out this essential element of the contract.

In the case of Darnell v. Lafferty, 113 Mo. App. 282, 88 S. W. 784, this court reviewed all prior authorities in this state, and an exhaustive study of the text-books was made in order to reach a decision as to how definite and specific the memorandum must be made in order to come within said statute. In that case the contract involved the sale of cattle. The writing described the cattle as "Ten head of cows and heifers." No designation was made as to how many cows or how many heifers were involved, but simply "ten head of cows and heifers." The court in that case permitted parol evidence to identify the number of cows and number of heifers making up the herd, the subject-matter of the contract, on the principle that parol evidence is admissible to show the circumstances surrounding the execution of the contract required by the statute of frauds to be in writing, and therewith to identify the subject-matter of the contract. We quote at length from the Darnell Case, supra since the authorities are so completely collated and discussed therein:

"The text-writers on this subject lay down the following rule: `It must, of course, appear from the memorandum, what is the subject-matter, of the defendant's engagement. Property which is purported to be bargained for, must be so described that it may be identified; * * * but the subject-matter may in any case be identified by reference to an external standard and need not be in terms explained.' Brown, Stat. of Frauds, § 385. `It is not necessary that the agreement should contain a very precise description of the property to be sold, as parol evidence is admissible to identify it, where the memorandum or note contains sufficient data to apply the description to the subject-matter by the aid of such evidence, without requiring any aid from such evidence as to the intention of the person sought to be charged, where he owns other property to which the writing might apply.' Wood, Stat. of Frauds, § 353. "The identification must be, it has been said, without recourse to oral evidence; but this broad statement needs to be qualified by the distinction that "where a sufficient description is given, parol evidence must be resorted to in order to fit the description to the thing; but where an insufficient description is given, or where there is no description, such evidence is inadmissible." The evidence is admissible to construe and apply a description, not to show what was intended to be expressed.' 1 Reed, Stat. Frauds, § 408. `The subject-matter of the agreement must all be included in the memorandum, and must be described with sufficient exactness to render its identity certain upon the introduction of extrinsic evidence, simply disclosing the situation of the parties at, and immediately before, the time of making the contract. Parol evidence is admissible to show the surrounding circumstances and position of the parties and thus to explain the meaning and application of the descriptive language, and thereby identify the subject-matter. * * * But, if, by this means, the subject-matter is not certainly ascertained, parol...