Rollins v. Claybrook

• Decision Date: 31 January 1856
• Citation: 22 Mo. 405
• Parties: ROLLINS, Respondent, v. CLAYBROOK, Appellant.
• Court: Missouri Supreme Court

22 Mo. 405

ROLLINS, Respondent,

v.CLAYBROOK, Appellant.

Supreme Court of Missouri.

January Term, 1856.

1. Where a written memorandum of a contract of sale does not purport to be a complete expression of the entire contract, and is uncertain as to the property sold, this may be designated by parol evidence.

2. Money paid upon a contract which the other party fails to perform, may be recovered back as a part of the damages for the non-performance, without a demand.

Appeal from Moniteau Circuit Court.

Action brought by Rollins against Claybrook, for the breach of a contract stated in the petition to be for the sale of “a certain lot of pork hogs, which the defendant then had up fattening, which were to weigh in the whole not less than four thousand pounds.”

The purport of the petition and answer, and of the evidence offered at the trial, is sufficiently stated in the opinion of the court, and it is only necessary to add the written memorandum of the contract, which was as follows:

“Hogs bought of G. Claybrook Nov. 12, 1852.

To weigh 200 lbs., $3 85 per 100 lbs.; over 175 lbs., $3 60 per 100 lbs.; under 175 lbs., $3 50 per 100 lbs., with privilege of delivering from 4 to 10,000 lbs.; and also privilege of delivering at Sandy Hook, at $3 50, $3 75 and $4 per 100 lbs.; and I have also paid said Claybrook $20 to bind said contract, &c.--to be delivered within 1st of November, 1852, and 1st of February, 1853.

DAVID E. G. ROLLINS.”

The defendant, after verdict and judgment against him, appealed to this court.

Gardenhire, for appellant.

1. The written contract was for “from four to ten thousand pounds,” saying nothing at all about hogs fattened by defendant or their minimum value, and of course not binding defendant to deliver any particular lot of hogs. To allow these things to be added by parol was manifest error. (8 Mo. 391.) 2. The money paid could not be recovered back without a previous demand. (16 Mo. 528; 18 Mo. 154; ib. 375; 19 Mo. 467.)

E. L. Edwards, for respondent. The evidence was properly admitted, as it was not offered to alter, or in any manner change the contract, but to show what particular hogs were bought. (Smith on Con. marginal p. 29, 30, top p. 94.)

LEONARD, Judge, delivered the opinion of the court.

The plaintiff seeks to recover damages for the non-delivery of a specific lot of hogs, bought of the defendant, and which the latter engaged would weigh four thousand pounds; and states that he paid the defendant twenty dollars, and made and signed a memorandum of the contract, which he delivered to the defendant. The latter admits in his answer the making of a contract as specified on the written memorandum; but insists that it was a contract for the sale of pork by the quantity and not of a specific lot, and that within the time allowed for that purpose he tendered part of the quantity, and would have paid the whole, but the plaintiff refused to receive it. Upon the trial, the written memorandum was read in evidence, and the plaintiff was allowed to prove, by parol, that “the defendant sold a specific lot of hogs, in his pen, fattened by himself, and that the plaintiff was to receive no hog weighing less than one hundred and fifty pounds,” and then gave evidence that the defendant had disposed of this lot elsewhere. No evidence of the demand of the twenty dollars was given, and the plaintiff, under instructions from the court, had a verdict for thirty dollars.

The only matters now material to the defendant are, the admission of the parol evidence, as to the contract, and the instruction allowing the plaintiff to recover the twenty dollars without a previous demand. Written instruments, executed by the parties themselves, are, in their very nature, most trustworthy evidence of what the parties have transacted. It is their own testimony, that they have furnished against themselves, and, of course, it can not be said of it, as of a witness, that it misrepresents either through ignorance, negligence or design; and being permanent and not subject to decay, like the memory of a living witness, it continues to be a faithful memorial of the transaction, no matter what length of time may have since intervened. This superiority of written over oral evidence has induced the legislature to require certain contracts--some on account of the value involved, and others on account of their...