Miller v. Dunlap

Decision Date04 May 1886
Citation22 Mo.App. 97
PartiesJOSEPH MILLER, ADMINISTRATOR, Respondent, v. JOHN H. DUNLAP, Appellant.
CourtMissouri Court of Appeals

APPEAL from the St. Louis Circuit Court, GEORGE W. LUBKE, Judge.

Reversed and remanded.

KLEIN & FISSE, for the appellant: The fact that the bid by which it was sought to contradict the contract was in writing, made no difference, because the rule includes all written, as well as all oral, communications between the parties antecedent to the execution of the written contract. Best on Evidence (Chamberlayne's Ed.) sect. 226, note 1; Koehring v. Muemminghoff, 61 Mo. 403.

LAUGHLIN & KERN, for the respondent: The court did not err in allowing the respondent to testify as to the bid submitted to the appellant by him; nor in admitting expert testimony as to what words in the contract meant. McMinn v. Owen, 2 Dall. 73; Bradley v. Packet Co., 13 Pet. 89; United States v. Peek, 102 U. S. 64; Shose v. Wilson, 9 Clark's F. 556.

THOMPSON, J., delivered the opinion of the court.

The original plaintiffs in this action were a partnership firm. But the plaintiff, Fathman, died pending the action, the plaintiff, Miller, took out letters of administration as surviving partner, and, by consent of parties, the cause was revived in his name.

The action is brought to recover a balance of $340.32, alleged to be due by the defendant to the plaintiffs for certain mill work furnished by the plaintiffs under a contract with the defendant, upon eight houses which the defendant was building for another party; and, also, (in the second count of the petition) to recover the sum of $166.24, extra mill work, furnished by the plaintiffs to the defendant, at the defendant's request, and used by him in the building of the said houses.

The answer, after a general denial, sets up that on December 16, 1882, the plaintiffs and the defendant entered into a contract whereby the plaintiffs agreed to furnish the mill work for the houses named in accordance with the drawings, plans, elevations, and specifications furnished by the superintending architect in charge of the erection of the houses, which plans, specifications, etc., were made a part of the contract. The answer agrees with the petition in stating that the sum agreed to be paid for the mill work was $6,760, and it very nearly agrees with the petition as to the extra work charged for in the second count, but it charges that by the specifications it was provided that mill work should include, among other things, wainscoting; that the plaintiffs did not perform their contract in this, that they failed and refused to furnish the wainscoting upon request; and that, in consequence of this refusal, the defendant was compelled to purchase the same in the open market, at a cost of three hundred and six dollars, which was the reasonable value of the same The answer, after stating a right of deduction of two small items, states the account so as to leave a balance due the plaintiffs of $187.36, and alleges that the defendant has tendered this sum to the plaintiffs, and again makes a tender of it. The two small items named, one of them involving a slight discrepancy between the plaintiffs' claim and the defendant's admission as to the extra work, and the other as to the value of the mill work on an omitted window, we shall lay out of view entirely, because they were not the subject of any very material controversy. The tender of $187.36 was proved, and it appeared that the plaintiffs refused to receive it, except as a payment on account, which offer the defendant declined. The real controversy was about the item of three hundred and six dollars, claimed by the defendant as a deduction, because of the refusal of the plaintiffs to furnish the wainscoting under the terms of their contract.

At the trial, the plaintiff, Fathman, testifying as a witness, admitted that the plaintiffs had made with the defendant a specific contract for the doing of the work for the sum of $6,760; that this contract was entered into by him on behalf of his firm with the defendant, with full knowledge of its contents; that by the terms of this contract the specifications annexed to the principal contract, under which the building was being erected, were made a part of this contract; that by these specifications the mill work was to include wainscoting; and that there was no other written contract between the parties touching the subject matter of the controversy. With the testimony of this one witness the plaintiffs closed their case in chief, and thereafter the defendant put in evidence this contract. It provided that the plaintiffs should “make and erect, build, and furnish certain mill work on eight houses * * * ‘design A’ or ‘design A alternate,’ in accordance with the drawings, plans, elevations, and specifications furnished by the superintending architect and adopted for said eight houses, which are hereunto annexed and made a part of this contract.” The plaintiffs also agreed to “provide and deliver, at their own cost and charges, all and every kind of material of good and sound quality and description, together with the cartage, scaffolding, tackles, tools, templets, rules, moulds, matters and things, labor and work, which may be necessary for the due, proper, and complete execution of this contract, and accordingly work, build, and complete in a good, sound, workmanlike manner, to the perfect satisfaction and approbation of the superintendent, Charles E. Illsley, the aforesaid mill work according to the specifications, drawings, dimensions, and explanations, and observations thereon or herein stated, described, or implied, or incident thereto, which may become necessary to the true intent or meaning thereof, although not specially and specifically stated or described by the aforesaid drawings and specifications. And should it appear that any of the works hereby intended to be done, or matters relative thereto, are not fully detailed or explained in the said specifications and drawings, the said parties of the second part shall apply to the superintendent or his representative for such further detailed explanations, and perform his orders as part of this contract.”

Nothing, it should seem, could be more specific than this, or more distinctly incorporate the specifications under which the houses were to be erected, so far as they related to mill work, so as to make such specifications a part of this contract. The specifications, thus made a part of the contract, recited the “mill work will include front cornice, all doors, sash, frames, blinds, shutters, jambs and finish, including panel backs, elbows, and soffits, base, wainscot, shelving, and strips, wainscoting, and bath and basin fittings, beads and plaster corners, canopy brackets.”

No contract could have been drawn which would have imposed upon the plaintiffs in more distinct terms the obligation to furnish the wainscoting for the eight houses named. Nevertheless, under the rulings made by the court, almost the whole controversy, extending through a protracted jury trial, was, whether the plaintiffs had, in point of fact, agreed to furnish wainscoting.

I. Against the objections of the defendant, the court allowed the plaintiff to give evidence of the antecedent bid under which he claimed that his firm did the work, together with the antecedent negotiations which led up to it. This evidence was wholly irrelevant. The making of the contract having been admitted by the deceased plaintiff in his testimony, the plaintiffs on this testimony conceded the defence, so far as the element concerning the wainscoting was concerned, except in regard to the reasonable value of the wainscoting which the defendant had been obliged to buy in consequence of the refusal of the plaintiffs to complete the contract according to its terms. The contract was clear, precise, unambiguous, and not susceptible of parol explanation. Need it be also said that when two parties, who are sui juris, deliberately enter into a contract in writing, knowing its terms, they are estopped by the contract and that all precedent negotiations are merged therein? If in any respect the parties to the contract had made a mutual mistake, so that upon any essential feature of it their minds have not, in fact, met, the party suffering in consequence of the mistake might have maintained an action in the nature of a suit in equity to reform the contract and to recover upon it as reformed. But this action is not so brought. It is brought to recover on the contract as it exists, and the contract, as it exists, shows that this portion of the defence is well established, except, only, as to the question of value. The whole inquiry, then, as to the antecedent bid, if there were one, the antecedent negotiations, subsequent negotiations not amounting to a new contract, or to an estoppel, bids which had been made by other parties, the habit of the architect who superintended this work of including...

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6 cases
  • Morris Plan Co. v. Universal Credit Co.
    • United States
    • Kansas Court of Appeals
    • January 11, 1943
    ...Harbaugh v. Ford Roofing Products Co., 281 S.W. 686; Keller v. Meyer, 74 Mo.App. 318; Goodfellow's Ex'rs v. Meegan, 32 Mo. 280; Miller v. Dunlap, 22 Mo.App. 97; Wolff Campbell, 110 Mo. 114, 19 S.W. 622; State ex rel. Chicago, M. & St. P. Ry. Co. v. Pub. Serv. Comm. of Mo., 260 Mo. 63, 180 S......
  • Morris Plan Co. v. Universal Credit Co.
    • United States
    • Missouri Court of Appeals
    • January 11, 1943
    ...Harbaugh v. Ford Roofing Products Co., 281 S.W. 686; Keller v. Meyer, 74 Mo. App. 318; Goodfellow's Ex'rs v. Meegan, 32 Mo. 280; Miller v. Dunlap, 22 Mo. App. 97; Wolff v. Campbell, 110 Mo. 114, 19 S.W. 622; State ex rel. Chicago, M. & St. P. Ry. Co. v. Pub. Serv. Comm. of Mo., 260 Mo. 63, ......
  • Gibson v. Zeibig
    • United States
    • Missouri Court of Appeals
    • January 4, 1887
    ...courts have always held that such conduct, if objected to at the time and allowed to pass unrebuked, is ground for a new trial. Miller v. Dunlap, 22 Mo. App. 97; Marble v. Walters, 19 Mo. App. 134; Roeder v. Studt, 12 Mo. App. 566; Brown v. Railroad, 66 Mo. 588, 590; The State v. Lee, 66 Mo......
  • Gibson v. Zeibig
    • United States
    • Missouri Court of Appeals
    • January 4, 1887
    ...always held that such conduct, if objected to at the time and allowed to pass unrebuked, is ground for a new trial. Miller v. Dunlap, 22 Mo.App. 97; Marble v. Walters, 19 Mo.App. 134; Roeder v. Studt, 12 Mo.App. 566; Brown v. Railroad, 66 Mo. 588, 590; The State v. Lee, 66 Mo. 165, 168; The......
  • Request a trial to view additional results

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