Koons v. St. Louis Car Company

• Decision Date: 02 April 1907
• Citation: 101 S.W. 49,203 Mo. 227
• Parties: CHARLES E. KOONS v. ST. LOUIS CAR COMPANY, Appellant
• Court: Missouri Supreme Court

101 S.W. 49

203 Mo. 227

CHARLES E. KOONS v. ST. LOUIS CAR COMPANY, Appellant

Supreme Court of Missouri, Second Division

April 2, 1907

Appeal from St. Louis City Circuit Court. -- Hon. Robert M. Foster Judge.

Reversed and remanded.

Lehmann & Lehmann and Joseph W. Jamison for appellant.

(1) Plaintiff sued on a special contract and he must recover upon the contract or not at all. This is the rule although the evidence develops a cause of action for money had and received or a quantum meruit for work and labor done and services performed, or some other good cause of action. In such case evidence of the reasonable value of the services performed should be excluded. Cole v. Armour, 154 Mo. 333. And plaintiff cannot sue upon one cause of action and recover upon another. Clements v. Yeats, 69 Mo 623; Smith v. Shell, 82 Mo. 215; Feurth v Anderson, 87 Mo. 354; Whippell v. B. & L. Assn., 55 Mo.App. 554. (2) The change made by plaintiff on the face of his contract was a nullifying alteration. Kelly v. Thuey, 143 Mo. 422; Bank v. Umrath, 42 Mo.App. 529; Hord v. Taubman, 79 Mo. 101; Evans v. Forman, 60 Mo. 449; Bank v. Armstrong, 62 Mo. 59; Bank v. Dunn, 62 Mo. 79. (3) Where, as in the present case, a contract is signed in duplicate, each of the parties retaining a copy, and one of the parties without the knowledge or consent of the other changes by alteration and then brings suit on the copy retained by him, defendant may defeat a recovery by the defense of non est factum; and this is true although defendant offers his unaltered duplicate in evidence. Mfg. Co. v. Hudson, 113 Mo.App. 344. (4) The writing being complete on its face, parol evidence was inadmissible to contradict or vary its terms. Parker v. Vanhoozer, 142 Mo. 627; McClurg v. Whitney, 82 Mo.App. 625; Local Con. Co. v. Tie Co., 185 Mo. 25; Harrington v. Brocman Com. Co., 107 Mo.App. 418; Howard v. Scott, 98 Mo.App. 509; Tufts v. Morris, 87 Mo.App. 98; Newbury v. Durand, 87 Mo.App. 290. (5) Parol evidence was inadmissible for the purpose of incorporating into the written instrument any alleged contemporaneous agreement. Walker v. Engler, 30 Mo. 130; Tracey v. Union Iron Works, 104 Mo. 193; Savings Bank v. Cushman, 66 Mo.App. 102; Loan & Trust Co. v. Whitman, 71 Mo.App. 275. (6) Where one seeks to enforce a contract, whether in writing or resting in parol, which has been modified by a subsequent agreement, he must declare upon the agreement as modified. Hennings v. Ins. Co., 47 Mo. 425; Lanitz v. King, 93 Mo. 513. The proper pleading in such case is to declare on the contract by setting out the agreement as first made and then the modification, since each is a substantive fact. Harrison v. Railroad, 50 Mo.App. 332; Halpin v. School Dist., 54 Mo.App. 371; Ebers v. Schumacher, 57 Mo.App. 451. (7) Plaintiff identified his altered duplicate as being the contract declared upon in his petition. His counsel offered the whole of the contract in evidence and thereby claimed under the alterations which plaintiff had fraudulently interlined therein. Plaintiff was bound by this offer, and by claiming rights by virtue of the alterations he avoided the contract. Bank v. Fricke, 75 Mo. 178; Bank v. Umrath, 42 Mo.App. 529. Where counsel state or admit facts, the existence of which precludes a recovery by their clients, the court may close the case at once and give judgment against their clients. Pratt v. Conway, 148 Mo. 291; Fillingham v. Railroad, 102 Mo.App. 573; Walsh v. Railroad, 102 Mo. 588; Butler v. National Home, 144 U.S. 65; State v. O'Neill, 151 Mo. 67. (8) Admissions or declarations made in ignorance of or under a misapprehension of the true facts do not estop the person making them from asserting the truth. Stagel v. Bldg. Co., 81 Mo.App. 620; Nichols v. Jones, 32 Mo.App. 657. As shown both by rulings made throughout the trial and the findings, great importance was attached by the referee to the admission found in the pleadings to the effect that defendant had employed plaintiff as was alleged in plaintiff's petition.

Lyon & Swarts for respondent.

(1) The admission in defendant's original answer, "that the plaintiff was employed by defendant as alleged in his petition," was sufficient to dispense with the necessity, otherwise, of offering any other proof of the contract. Drug Co. v. Bybee, 179 Mo. 366; Walser v. Wear, 141 Mo. 463; Cross v. Railroad, 141 Mo. 144; Spurlock v. Railroad, 125 Mo. 407; Schad v. Sharp, 95 Mo. 576; Price v. Clevenger, 99 Mo.App. 540; Mahan v. Brinnell, 94 Mo.App. 171; Bushnell v. Ins. Co., 91 Mo.App. 528. Defendant's amended answer in no wise lessened the effect of defendant's admission in its original answer, and amounted to nothing more or less than a general denial. Meyer v. Broadwell, 83 Mo. 574. (2) The original contract was verbal and a part only was reduced to writing. Parol evidence was, therefore, admissible to show any distinct collateral agreement, independent of, and not varying, the written agreement. Parol evidence is also admissible where the writing itself is subsequently varied by a parol agreement. Roe v. Bank, 167 Mo. 427; State v. Cunningham, 154 Mo. 172; Greening v. Steele, 122 Mo. 294; Lumber Co. v. Warner, 93 Mo. 384; Brown v. Bowen, 90 Mo. 189; Ellis v. Bray, 79 Mo. 238; O'Neil v. Crain, 67 Mo. 251; Life Assn. v. Cravens, 60 Mo. 390; Van Studdiford v. Hazlett, 56 Mo. 324; Letcher v. Letcher, 50 Mo. 138. (a) Plaintiff's petition does not charge that the contract of employment was in writing, and in view of defendant's insistence that unauthorized alterations by plaintiff in his duplicate of the written portion of the contract entirely vitiated such duplicate and in fact the whole of the written evidence of any portion of the contract, then on such theory of the case the entire agreement must be deemed to be thrown into parol. Boyd v. Camp, 31 Mo. 165. (b) Inasmuch as certain omissions in the written portion of the agreement were conceded to exist by defendant before plaintiff began his employment and the supplying of these omissions was demanded by plaintiff and acceded to by defendant before plaintiff began his employment, parol evidence of what the employment actually was in its entirety was admissible. Warren v. Mfg. Co., 161 Mo. 121; State v. Cunningham, 154 Mo. 172. (3) Defendant's unaltered duplicate of the written portion of the agreement was admissible in evidence, even though the referee was justified in excluding, upon defendant's objection, plaintiff's altered duplicate. Jones v. Hoard, 59 Ark. 46; Young v. Cohen, 42 S.C. 328. Defendant is bound, however, by its voluntary introduction of its unaltered duplicate in evidence in its cross-examination of plaintiff. Dice v. Hamilton, 178 Mo. 90. Defendant is also bound by the testimony elicited by it with reference to the alterations made in plaintiff's duplicate, whereby what are erroneously termed "modifications" of the written portion of the agreement were shown to be merely intended to supply conceded omissions therein. Sutter v. Raeder, 149 Mo. 309; Railroad v. Plate, 92 Mo. 635. (4) If, under the cases below cited, the petition in this case may be held to be a petition on quantum meruit, then all objections of defendant to the recovery herein are of no avail. Warder v. Seitz, 157 Mo. 149; Glover v. Henderson, 120 Mo. 376. (5) The judgment is for the right party, on whatever theory or from whatever viewpoint the case may be looked at, and it will not, therefore, be disturbed. Redman v. Adams, 165 Mo. 70.

OPINION

FOX, P. J.

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 six 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 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 per running foot, measuring over corner posts, for painting standard closed cars with open cab at each end; five dollars per running foot, measuring over corner posts, for painting cars with steam coach roof and closed cab at each end; three dollars 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 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 th...