Pittsburg Steel Co. v. Cottengin
| Decision Date | 14 April 1914 |
| Parties | PITTSBURG STEEL COMPANY, a Corporation, Appellant, v. L. W. COTTENGIN, Respondent |
| Court | Missouri Court of Appeals |
Appeal from Wright County Circuit Court.--Hon. C. H. Skinker, Judge.
AFFIRMED.
Judgment affirmed.
Jackson & Jackson for appellant.
(1) Antecedent or contemporaneous verbal stipulations under such facts as shown in this case are inadmissible to vary or contradict a written contract Helmrichs v. Gehrke, 56 Mo. 79; Bank v. Bank, 149 S.W. 495; McDaniels v. United Rep. Co., 165 Mo.App. 678, 148 S.W. 464; Wheless v. Grocery Co., 140 Mo.App. 572, 120 S.W 708. (2) Even in cases of ambiguity in a written contract the parties may not say in plain terms what was the intention and parol evidence is admissible not for the purpose of contradicting the writing but for the purpose of explaining the ambiguity by directing the court to the intent of the writing so that the writing may be sustained as the true contract of the parties. McDaniels v. Railroad, 165 Mo.App. 678; Wheless v. Grocery Co., 140 Mo.App 572; Dec. Dig. Evidence, par. 448, pages 1245-6; Cameron v. Sexton, 110 Ill.App. 381. (3) The court should have instructed the jury that if said G. L. Robinson had no authority to make any contract other than one entered into in writing on blank written order forms prepared for the company that they should find the issues for the plaintiff, as prayed for in instruction number 3 by plaintiff. Bronson v. Implement Co., 135 Mo.App. 483, 116 S.W. 20; Huffcut on Agency, page 135, par. 106; White & Co. v. Massy, 65 Mo.App. 260; Carson, Pierie Scott & Co. v. Culver, 78 Mo.App. 597; Lencke & Co. v. Cohen, 129 S.W. 1002.
Mansfield & Cox for respondent.
(1) An ambiguous contract may be explained and the condition of the parties at the time and the reasons for making the contract and the circumstances under which it was made may be shown by parol. Bertig-Smythe v. Lumber Co., 112 Mo.App. 259, 267; Thetford v. Ins. Co., 140 Mo.App. 254, 257; Lumber Co. v. Stoddard Co., 113 Mo.App. 306, 314-315. (2) The construction put upon the contract by the parties who made it was admissible. Construction Co. v. Tie Co., 185 Mo. 25, 73. (3) The authority of an agent is as great as the necessities of the business in which he engages for his principal and when the principal puts the agent forward as having full authority as to the particular matter involved or places the agent in a position where others are justified in the belief that his powers are general as to the matter involved, then limitations on his authority imposed by the principal do not affect those with whom he deals unless notice of the limitation is brought home to the party. Baker v. Railroad, 91 Mo. 152, 159; Porter v. Woods, 138 Mo. 539, 550, 551; Woolen Mills v. Meyers Co., 43 Mo.App. 124, 130; Meier v. Proctor & Gamble Co., 81 Mo.App. 410, 418; Railroad v. Railroad, 110 Mo.App. 300, 309; Rice v. Groffman, 56 Mo. 434; McNichols v. Nelson, 45 Mo.App. 446; Harrison v. Railroad, 50 Mo.App. 332, 337; Edwards v. Thomas, 66 Mo. 468, 482-483.
--This suit grew out of a dispute as to whether the plaintiff as seller or the defendant as buyer should pay the freight on certain wire fencing sold and shipped by plaintiff to defendant. The defendant is a country merchant doing business at Grove Springs, Missouri, but whose railroad station is Niangua, Missouri, and plaintiff's business and location is indicated by its corporate name. The terms of the sale are shown by a written order or contract signed by defendant and attested by plaintiff's salesman, who called on defendant and solicited this order. The petition counts on goods, wares and merchandise sold and delivered to defendant, amounting to $ 415.72, and admits payment of $ 330.72 thereof, leaving a balance due of eighty-five dollars. The defendant pleads payment in full, which is explained by his having paid the freight amounting to eighty-five dollars, while plaintiff claims that the written order requires defendant to pay the freight and that this amount so paid cannot be credited on the purchase price. The jury found for defendant.
The evidence abundantly shows that the real agreement made between the defendant and plaintiff's salesman was that the plaintiff would pay the freight. If the evidence showing this real agreement is admissible, then the verdict is abundantly sustained. When the goods arrived at the local railroad station and defendant found the freight was not prepaid he refused to receive the same and the car stood on the track several days. Thereupon plaintiff's salesman, the same one who had taken the order originally, explained to him that while the agreement was that the plaintiff should pay the freight, yet that defendant should pay the same to the railroad, receive the goods and on sending in the freight bill the amount so paid would be credited on the purchase price. The defendant thereupon did this. This later arrangement is spoken of during the trial as a new agreement on the part of plaintiff to pay this freight and is sought to be repudiated by plaintiff on the ground that this salesman had no authority to make such agreement or to change the written contract, as his authority ended with his taking the order and transmitting it to the plaintiff. [Groneweg & Co. v. Estes, 144 Mo.App. 418, 128 S.W. 786.] On the other hand, defendant contends that as the salesman had authority to sell goods, fix prices, etc., he would have power to contract with reference to the payment of the freight on same as a necessary incident to selling goods to be delivered at distant points and that such authority would not be lost at least until the goods sold were actually delivered. The defendant argues in support of the salesman's authority to bind his principal to pay the freight the familiar rule of law that the authority of an agent is as great as the necessities of the business in which he engages for his principal and when the principal puts the agent forward as having full authority as to the particular matter involved, or places the agent in a position where others are justified in the belief that his powers are general as to the matter involved, then limitations on his authority imposed by the principal do not affect those with whom the agent deals unless notice of the limitation is brought home to the other contracting party. [Porter v. Woods, 138 Mo. 539, 550, 39 S.W. 794; Meier v. Proctor & Gamble Co., 81 Mo.App. 410, 418; McNichols v. Nelson, 45 Mo.App. 446, 452.]
But we think it is apparent that plaintiff's selling agent and the defendant were not making or intending to make a new contract or to modify the old one with reference to the payment of this freight. Defendant was maintaining that the original written order for the goods provided for plaintiff paying the freight and that he would not accept same on any other terms. According to defendant's evidence, the salesman conceded that such was the original contract and he merely induced defendant to accept the goods by paying the freight as so much of the purchase price and to be credited thereon on sending in the freight bill--a common method of doing business when the freight is to be paid by the shipper. There was therefore no new or modified contract made or attempted to be made and the selling agent's authority to make one is not material.
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