Official Catalogue Co. v. Weber Gas & Gasoline Engine Co.
| Citation | 109 S.W. 1071,130 Mo.App. 646 |
| Parties | OFFICIAL CATALOGUE COMPANY, Respondent, v. WEBER GAS & GASOLINE ENGINE COMPANY, Appellant |
| Decision Date | 06 April 1908 |
| Court | Court of Appeals of Kansas |
Appeal from Jackson Circuit Court.--Hon. John G. Park, Judge.
AFFIRMED.
Karnes New & Krauthoff for appellant.
(1) It has been held in a long line of decisions in this state that where a written memorandum of a contract does not purport to be a complete expression of the entire contract, parol evidence may be introduced to show what the entire contract was. Rollins v. Claybrook, 22 Mo. 405; Moss v Green, 41 Mo. 390; Life Assn. v. Cravens, 60 Mo. 390; O'Neil v. Crain, 67 Mo. 251; Brown v. Bowen, 90 Mo. 189; Koons v. Car Co., 203 Mo 255; Lumber Co. v. Warner, 93 Mo. 384; Norton v Bohart, 105 Mo. 633; Lumber Co. v. Lumber Co., 39 Mo.App. 220; Broughton v. Null, 56 Mo. App 231. (3) The instrument sued on by plaintiff herein appellant contends falls directly within the line of the decisions cited herein, and the instrument shows on its face that it is in no respect a complete contract. It is simply an authority for the respondent to insert appellant's advertisement in a catalogue.
Hughes & Whitsett for respondent.
(1) The rule of law applicable to this case is well settled in this State and we think it is clear that the question here involved does not come within any of the exceptions to that rule. (2) In this case, the contract sued upon is complete and unequivocal in its terms. Squier v. Evans, 127 Mo. 518; State ex rel. v. Hoshaw, 98 Mo. 358; Boyd v. Paul, 125 Mo. 9; Jones v. Shepley, 90 Mo. 307; Construction Company v. Moss, 185 Mo. 61; Tracy v. Iron Works, 104 Mo. 193; Greenleaf on Evidence (16 Ed.), 275; Bank v. Hunt, 25 Mo.App. 170; Manufacturing Co. v. Jaeger, 81 Mo.App. 239; Morgan v. Porter, 103 Mo. 140, 141; Zeringue v. Railroad, 34 F. 239; Steamboat Co. v. Steamboat Co., 109 U.S. 672; Emerson v. Slater, 63 U.S. (22 How.) 28; Oelrichs v. Ford, 64 U.S. (23 How.) 49; Insurance Co. v. Lowry, 96 U.S. 544. (3) So too, in this case, the time to have tested defendant as to what he would have done, if they had not agreed as they testified, to print a million copies of the catalogues, was when the contract was executed; and, as a business man, if that stipulation was of such great importance to him, he should have insisted upon its being written into the contract itself. But it nowhere appears therein.
--This action is brought to enforce the following contract:
(Signature.) WEBER GAS & GASOLINE ENGINE CO.
The defense, is, that the writing "sued on was not in itself a complete contract, and that the contract in its entirety was an oral agreement; and that as a part of the oral agreement the plaintiff agreed to print and circulate one million copies of the catalogue containing this advertisement."
The cause was tried by the court without a jury, and defendant introduced evidence tending to show that a part of the agreement was oral as stated, which the court refused to consider, and rendered judgment on the written contract, from which the defendant appealed. The only question before us is one of law. It is conceded that if the contract is complete on its face the cause should be affirmed, if not complete the evidence offered was admissible and the cause should be reversed.
It is the settled law of this State that "whilst parol evidence is inadmissible to contradict, alter, or vary a written agreement, yet where a written memorandum of a contract does not purport to be a complete expression of the entire contract, or a part only of the contract was reduced to writing, the matter thus left out of the writing may be supplied by parol evidence." [Moss v. Green, 41 Mo. 389; O'Neil v. Crain, 67 Mo. 250; Rollins v. Claybrook, 22 Mo. 405; Black River Lumber Co. v. Warner, 93 Mo. 374, 6 S.W. 210.] The St. Louis and Kansas City Courts of Appeals have enunciated the same rule of law. The latest expression of our courts on the subject is to be found in Koons v. St. Louis Car Co., 203 Mo. 227, 101 S.W. 49. The rule being conceded the question in each case is one of construction. The court must say whether the writing evidencing the contract is incomplete within itself.
The writing before us does not indicate in any way that the contract between the parties is incomplete. It is a simple agreement to the effect that the defendant agrees to pay to plaintiff the sum of $ 400 upon proof that plaintiff has inserted one page of advertisement for defendant in the Official Catalogue of the Louisiana Purchase Exposition of 1904, St. Louis, Mo., in department 5, Machinery, one page one Department Catalogue; and that the...
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