Marshall Hall Grain Co. v. P. H. Boyce Mercantile Co.

• Decision Date: 09 May 1919
• Docket Number: No. 2446.,2446.
• Citation: 203 Mo. App. 220,211 S.W. 725
• Parties: MARSHALL HALL GRAIN CO. v. P. H. BOYCE. MERCANTILE CO.
• Court: Missouri Court of Appeals

211 S.W. 725

203 Mo. App. 220

MARSHALL HALL GRAIN CO. v. P. H. BOYCE. MERCANTILE CO.

No. 2446.

Springfield Court of Appeals. Missouri.

May 9, 1919.

Appeal from Circuit Court, Scott County; Frank Kelly, Judge.

Action by the Marshall Hall Grain Company against the P. H. Boyce Mercantile Company. From judgment for defendant, plaintiff appeals. Reversed and remanded.

Dudley & Lucas, of Benton, and Martin T. Farrow, of St. Louis, for appellant. Mozley & Blanton, of Benton, for respondent.

FARRINGTON, J.

The appellant, plaintiff below, appealed from an adverse judgment rendered against it, alleging that the trial court erred in permitting the defendant to introduce oral testimony which varied and altered a written binding contract which had been entered into by the parties.

The facts of the case, as shown by the record, are as follows: The plaintiff is a corporation engaged in the grain business in the city of St. Louis; the defendant is a corporation engaged in the grain business in the town of Morley, Scott county, Mo. On October 23, 1917, a representative of the plaintiff entered into negotiation with the representatives of the defendant for the purchase of five cars of corn, to be delivered f. o. b. cars at Morley, and to be shipped at the convenience of the seller between the 23d of October, 1917, and the 5th of November, following. It was understood between the parties that the agent of the plaintiff could not close a sale, but that any negotiation or proposition that he and the defendant might agree on must be confirmed by the plaintiff in its St. Louis office by its proper officer. There is no dispute as to the price which was to be paid for the corn. The agent of the plaintiff telephoned to plaintiff's St. Louis office the terms of the sale, which he testifies were to be for a certain price, and there were to be five carloads of the corn delivered f. o. b. cars at Morley on or before November 5, 1917. The St. Louis office confirmed the sale as reported to it, and on the same date forwarded to the defendant a cash grain contract for the purchase and sale of this corn, setting forth that on the 23d day of October, 1917, it had purchased five cars of corn, describing the character of corn and giving the price to be paid, fixing the delivery at f. o. b. cars at Morley, and to be shipped at the convenience of the seller between October 23, 1917, and November 3, 1917. This contract contains many other provisions, which are unnecessary to set out for a full disposition of the point raised here. It was signed by the plaintiff, and a blank line was left, over which was written the word, "accepted," and under which line was written the word, "seller." This line was intended to be signed by the defendant. Accompanying the contract was a letter written by the plaintiff, dated October 23, 1917, which letter was as follows (address and signature of letter omitted):

                                      "St. Louis, 10/23/17
                

"Gentlemen: We inclose confirmation covering five cars of corn bought from you this morning by our Mr. Niergarth for shipment by November 5th.

"We trust you will find this contract correct and in regular order and will appreciate your signing the duplicate and returning to us for our files.

"Please ship this corn out to us as quickly as possible. If you are in position to make us any offers please let us hear from you."

On receipt of this letter, the defendant on its letter head replied:

                                "Morley, Mo., Oct. 24, 1917
                

"Marshall Hall Grain Co., St. Louis, Mo.— Gentlemen: We are returning to you the corn papers. Will say that this corn was sold to be shipped on or before Nov. 5th. We notice you have the papers made from 10-23 to 11-3. Please change this to read from 10-23 to 11-5 as per our contract and return the papers to us for our signature."

(Signature omitted.)

On October 25th, the plaintiff mailed the following letter to the defendant:

"P. D. Boyce Mercantile Co., Morley, Mo.— Gentlemen: We return herewith our contract covering the five thousand corn, and have corrected it to November 5th, but in writing us (up) the confirmation we confused the time of shipment with another purchase.

"Trust you will find the contract in regular order now, and will appreciate if you will sign the duplicate and return to us."

(Signature omitted.)

The defendant failed to deliver the corn to the plaintiff, and the plaintiff was required to go on the market and procure corn at a loss to it, the price of corn having advanced between October 23d and November 5th. As to the above facts there is no serious dispute between the parties.

The defendant filed a general denial and set up as a defense that the contract was one which was required to be signed under the statute of frauds in this state governing the sale of merchandise, and relies upon the defense that it (the defendant), the party sought to be charged, never signed any contract or memorandum of contract such as to satisfy the statute of frauds.

The defendant offered the witnesses who transacted the business with plaintiff's agent, who, over the objection and exception of plaintiff, were permitted to testify that it was a part of the agreement with plaintiff's agent that this corn would be sold and delivered as contended for by the plaintiff on or before November 5th, provided the defendant was able to procure cars from the railroad company in which to ship the corn. This provision is testified to by the witness of defendant as being a part of the agreement for the sale of the corn. The contract of sale, heretofore referred to, which was forwarded by the plaintiff on October 23d, for defendant's acceptance and signature, contained no such provision, but fixed the final delivery date at November 5th without any provision as to defendant's ability or inability to procure cars.

There are therefore two questions which arise in this case: First, did the correspondence carried on between the parties, and especially that part of the correspondence which was signed by the defendant, satisfy the statute of frauds as to the making of a contract of sale and a signing by the defendant, the party sought to be charged; and, second, if there was such a contract made, can the defendant alter or change the contract by parol evidence?

We are convinced that the trial court erred in permitting this testimony, which was objected to, because the evidence shows that a binding contract was entered into between the parties and signed by the defendant. The letter written by the plaintiff sending down the cash grain contract, dated October 23d, informed the defendant that the sale of the five cars of corn negotiated by Niergarth, plaintiff's agent, was confirmed for shipment by November 5th. The contract however, which was sent fixed the final delivery date at November 3d, which all parties concede was not the final delivery date, but on the other hand all concede that November 5th was the final delivery date. The defendant, on receiving this letter, immediately answered returning the cash grain contract which provided that the last final delivery date would be on November 3d, informing the plaintiff that this corn was sold to be shipped on November 5th, in which letter it is stated, "We notice you have the papers made from 10-23 to 11-3," and instructing plaintiff as follows, "Please change...