Koons v. St. Louis Car Co.

• Decision Date: 19 March 1907
• Citation: 101 S.W. 49,203 Mo. 227
• Parties: KOONS v. ST. LOUIS CAR CO.
• Court: Missouri Supreme Court

101 S.W. 49

203 Mo. 227

KOONS v. ST. LOUIS CAR CO.

Supreme Court of Missouri, Division No. 2.

March 19, 1907.

1. CONTRACTS—ACTIONS FOR BREACH—PLEADING —ISSUES, PROOF, AND VARIANCE.

Where an action is brought on a written contract, no verbal contract being pleaded, recovery cannot be had upon a contract, part of which is in writing, and another part resting in parol.

2. EVIDENCE—PAROL EVIDENCE—INCOMPLETE CONTRACT.

Where a written contract does not show on its face that it is incomplete, and that it does not purport to be a complete expression of the entire agreement, evidence of a verbal agreement is not admissible on the theory that

the original contract was verbal, and a part only was reduced to writing.

3. ALTERATION OF INSTRUMENTS—CONSENT OF PARTIES—EFFECT UPON RIGHTS OF PARTIES.

Where one party to a contract alters his duplicate copy of the contract without the knowledge or consent of the other party, he thereby nullifies the contract, regardless of his intent in doing so.

4. EVIDENCE—ABANDONED PLEADINGS—JUDICIAL ADMISSIONS.

In an action on a written contract which was not set out in the petition, defendant's original answer, made without any knowledge that the original contract had been altered, could not be used as an admission against him after the altered contract was introduced in evidence and an amended answer filed.

5. CONTRACTS—ACTIONS FOR BREACH—ISSUES, PROOF, AND VARIANCE.

The action being brought on the altered contract, the plaintiff could not recover on the copy of the contract retained by defendant, even if the alteration of his duplicate had not vitiated the whole contract as it then existed; since the copy retained by defendant was not sued on, and was not offered in evidence.

6. SAME.

Where an original contract is modified and varied by oral agreement between the parties, the whole matter is thrown into parol, and, in order to recover upon such modified contract, the contract so modified must be distinctly pleaded.

7. SAME.

The action being brought on a contract may not be considered as one of quantum meruit, so as to make evidence competent which was incompetent under the pleadings.

Appeal from St. Louis Circuit Court; Robert M. Foster, Judge.

Action by Charles E. Koons against the St. Louis Car Company. From a judgment for plaintiff, defendant appeals. Reversed and remanded.

This is an action upon contract, seeking to recover the contract price for painting cars, lettering signs, and the value of a certain stock of paints, oils, varnishes, and painters' tools, done and furnished by plaintiff for the defendant. The suit was brought in the circuit court of the city of St. Louis, and the amount claimed was $7,370.02, with 6 per cent. interest from January 1, 1899. The main questions involved regard the pleadings and the admissibility of the evidence thereunder, and, in order to properly understand those questions, it will be necessary to set out the pleadings. Omitting the formal parts, the petition is as follows:

"The plaintiff states that at all the times hereinafter mentioned the defendant was, and still is, a corporation duly organized and existing under and by virtue of the laws of the state of Missouri, and having its principal office and place of business in the city of St. Louis, in the state of Missouri. For his cause of action herein the plaintiff states that heretofore, to wit, on or about the 21st day of January, 1898, he was employed by the defendant to paint cars for the defendant, and to do such other painting as he might from time to time be ordered and directed by the defendant to do. That the defendant agreed to pay the plaintiff for said work as follows: Four dollars and fifty cents ($4.50) per running foot, measuring over corner posts, for painting standard cars with open dashes, whether trail or motor car; four dollars and seventy-five cents ($4.75) per running foot, measuring over corner posts, for painting standard closed cars with open cab at each end; five dollars ($5.00) per running foot, measuring over corner posts, for painting cars with steam coach roof and closed cab at each end; three dollars ($3.00) per running foot, measuring over corner posts, for painting open cars of all styles; the reasonable value of painting and lettering signs; also one dollar and fifty cents ($1.50) per car for furnishing the necessary tools for doing the aforesaid work; also the reasonable value of all other painting which the defendant might order and direct the plaintiff to do; the plaintiff agreeing to furnish all material necessary to do the work of painting cars as aforesaid. That it was further agreed between the plaintiff and the defendant that the plaintiff should furnish the car builders of the defendant with lead and oil, for car building purposes only, and that the defendant agreed and promised to pay the plaintiff the reasonable cost price thereof. That it was further agreed between the plaintiff and the defendant that the stock of paints and paint materials and miscellaneous painters' tools, owned by the defendant and on hand at the time the plaintiff begins his said employment with the defendant, should be turned over to the plaintiff as his property, and charged against the plaintiff at the reasonable market value thereof, and that at the termination of the plaintiff's said employment with the defendant the stock of paints and paint materials and miscellaneous painters' tools then on hand and owned by the plaintiff should be turned over to the defendant as its property, and be credited in favor of the plaintiff against the defendant on account of the plaintiff's said employment at the then reasonable market value thereof. The plaintiff further states that in pursuance of the terms of his said employment by the defendant, the plaintiff did, between the 3d day of February, 1898, and the 31st day of December, 1898, both inclusive, paint cars for the defendant, paint and letter signs for the defendant, perform other painting work at the special instance and request of the defendant, furnish the necessary tools for doing the aforesaid work, furnish all material necessary to do said work, and furnish the defendant's car builders with lead and oil for car building purposes, all of which is more particularly set forth in the statement of account herewith filed and marked Exhibit A, in which said statement of account are also set forth the prices charged as agreed upon as aforesaid, all of which are and were reasonable and just, and which the defendant promised and agreed to pay to the plaintiff, and also the reasonable market value of the stock of paints and paint materials and miscellaneous painters' tools turned over to the plaintiff by the defendant at the time the plaintiff began his said employment with the defendant, to wit, on the 3d day of February, 1898, and also the reasonable market value of the same on hand and turned over by the plaintiff to the defendant at the termination of the plaintiff's said employment with the defendant, to wit, on the 31st day of December, 1898. The plaintiff further states that on the 31st day of December, 1898, the defendant terminated the plaintiff's said employment, and received from the plaintiff the plaintiff's stock of paints and paint materials and miscellaneous painters' tools, then on hand, and of the reasonable market value of six thousand nine hundred and two dollars and thirty-eight cents ($6,902.38). The plaintiff further states that by reason of the premises aforesaid the defendant is justly indebted to the plaintiff in the sum of seven thousand three hundred and seventy dollars and two cents ($7,370.02), being the balance due and owing by the defendant to the plaintiff on account of his said employment; that said sum was due and payable to the plaintiff on the 1st day of January, 1899, although frequently demanded by the plaintiff from the defendant since said 1st day of January, 1899, inclusive, the defendant has failed and refused, and still fails and refuses, to pay the same or any part thereof. Wherefore the plaintiff prays judgment against the defendant for said sum of seven thousand three hundred and seventy dollars and two cents ($7,370.02), with interest from the 1st day of January, 1899, at the rate of six (6) per cent. per annum, and costs."

Thereafter, on February 18, 1903, defendant by leave of court filed its answer to plaintiff's petition, which answer, omitting caption and signatures, is in words and figures as follows: "Defendant for its answer to the petition admits that it was a corporation, admits that the plaintiff was employed by defendant as alleged in his petition, admits that said plaintiff performed some work for defendant as a painter, and declares that the same has since been paid for by defendant in money and in material furnished by defendant to plaintiff; but this defendant denies that it received from plaintiff on the 31st day of December, 1898, or at any other time, paints, paint materials, and painters' tools to the amount of the value of $6,902.38 as alleged in the petition, and denies that plaintiff in his petition gives proper credit to defendant, and denies each and every other allegation in plaintiff's petition contained. Further answering, defendant says that the trial of the issues herein will involve the taking and examination of long and complicated accounts between the parties, and therefore asks the court to appoint some competent person as referee herein."

By stipulation of the parties filed, the court, on February 21, 1903, appointed Walter D. Coles, Esq., referee in said cause, and directed him to try all the issues in the case and report his decision to the court with all convenient speed. The referee, after qualifying, and in pursuance to notice given the parties, began the taking of testimony in the cause on March 10, 1903, and the hearing was continued from time to time until October 16, 1903, on which day he filed his written report and finding...