Pittsburgh Steel Co. v. Cottengin

• Decision Date: 28 March 1914
• Citation: 179 Mo. App. 392,165 S.W. 391
• Parties: PITTSBURGH STEEL CO. v. COTTENGIN.
• Court: Missouri Court of Appeals

165 S.W. 391

179 Mo. App. 392

PITTSBURGH STEEL CO. v. COTTENGIN.

Springfield Court of Appeals. Missouri.

March 28, 1914.

1. SALES (§ 89)—MODIFICATION—PAYMENT OF FREIGHT.

There is no new contract or modification of the contract of sale, providing that the seller would pay the freight, where on the goods arriving without prepayment of the freight, and the buyer refusing to accept them, the seller's agent explained to him that he should pay the freight to the railroad and receive the goods, and on sending the freight bill to the seller would be credited with the amount thereof on the purchase price.

2. EVIDENCE (§ 448) — PAROL EVIDENCE — WRITTEN CONTRACT.

A written contract must be complete on its face, free of ambiguity, and not contradictory of itself, to make inadmissible parol evidence of a term of the contract.

3. APPEAL AND ERROR (§ 901) — RECORD — SHOWING ERROR.

Appellant complaining of admission of parol evidence of a term of a contract must show by the record that the written contract was such as to make parol evidence inadmissible.

4. APPEAL AND ERROR (§ 582)—ABSTRACT OF RECORD — REFERENCE TO BILL OF EXCEPTIONS.

Court of Appeals rule 15 (122 S. W. vi), requiring the abstract of the record to "set forth so much of the record as is necessary to a full and complete understanding" of the questions for decision, is not satisfied by a reference therein to the original bill of exceptions.

5. EVIDENCE (§ 450) — PAROL EVIDENCE — AMBIGUOUS CONTRACT.

The written order for goods to be shipped by plaintiff from Pittsburgh to Niangua, with the abbreviation "f. o. b." appearing in several places in the order blank, generally in connection with classes of goods not contained in the particular sale, and with no place named, but "Pbg." written after such letters in the case of one item ordered, the whole order however concluding, just above defendant's signature, "All above f. o. b. Niangua," is so ambiguous as to admit of oral evidence of the circumstances and reasons for making the contract, and showing the true understanding and meaning of the same.

Appeal from Circuit Court, Wright County; C. H. Skinker, Judge.

Action by the Pittsburgh Steel Company against L. W. Cottengin. Judgment for defendant, and plaintiff appeals. Affirmed.

Jackson & Jackson, of Hartville, for appellant. F. M. Mansfield, of Hartville, and Argus Cox, of Springfield, for respondent.

STURGIS, J.

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, Mo., but whose railroad station is Niangua, Mo., 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 $85. The defendant pleads payment in full, which is explained by his having paid the freight amounting to $85, 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...