Serat v. Winter

• Citation: 262 S.W. 66,218 Mo. App. 60
• Decision Date: 05 May 1924
• Docket Number: No. 14630.,14630.
• Parties: SERAT v. WINTER
• Court: Court of Appeal of Missouri (US)

262 S.W. 66

218 Mo. App. 60

SERAT v. WINTER

No. 14630.

Kansas City Court of Appeals. Missouri.

May 5, 1924.

Rehearing Denied May 26, 1924.

Appeal from Circuit Court, Jackson County; Willard P. Hall, Judge.

Action by Seth S. Serat against R. L. Winter. Judgment for defendant, and plaintiff appeals. Affirmed.

A. F. Evans, of Kansas City, for appellant.

Ball & Ryland, of Kansas City, for respondent.

ARNOLD, J.

This is an action for the recovery of the price of 220.95 tons of coal, alleged to have been sold and delivered under the terms of the following written contract:

"Star Coal Co., Miner and Shipper. "Third Floor, Commerce Building.

"E. R. Dusky, General Sales Agt.

"Kansas City, Mo., Sept. 23, 1916.

"Mr. R. L. Winter, Trustee, Kansas City, Missouri—Dear Sir: We hereby agree to furnish your entire requirements for the Maryland Zinc Company and the Spring River Mine, of the kind and grade of coal herein mentioned for one (1) year from September 23, 1916, at the following prices per ton of two thousand (2000) pounds f. o. b. mines: Southern Kansas district shaker screened lump, $2.25; Southern Kansas district mine run, $2.00. Railroad or mine weights in all cases to govern settlements Payments to be made on or before the tenth (10th) day of each month for all coal shipped during the preceding month. You to take your entire supply of coal from us, and we to fill your orders promptly at all times, except in cases of strikes of mines, contingencies of transportation, or other unavoidable delays. The acceptance of this proposition in writing will be considered a contract, and binding on both pasties.

"Yours very truly, "Star Coal Company,

"By E. R. Dusky, General Sales Agent. "Accepted:

"R. L. Winter, Trustee."

The petition alleges that plaintiff was, and is now, engaged in business at Kansas City, Mo., under the name of the Star Coal Company, and that, as such, he entered into the contract above referred to, whereby he became obliged to furnish defendant all the coal described in said contract, under the conditions therein specified; that defendant became obligated to pay for the coal so furnished in accordance with the terms thereof ; that under and pursuant to said contract plaintiff furnished six oars of coal, totaling 220.95 tons, from March 21, 1917, to April 17, 1917, inclusive, and that thereby defendant became, and still is, indebted to plaintiff in the sum of $441.90. Judgment is prayed for said amount, with interest from May 10, 1917. A demurrer to the petition was filed and by the court overruled.

The answer admits that plaintiff was engaged in business at Kansas City, Mo., under the name of the Star Coal Company and that the contract set out in the petition is a correct copy of the instrument, which was signed by defendant on or about September 23, 1916, and denies each and every other allegation contained in the petition.

Further answering, defendant charges that at the time of the signing of said instrument defendant was an officer and agent of a corporation known as the Spring River Mines Company, engaged in mining and milling lead and zinc ore, at or near Stott City, Mo.; that defendant signed the said instrument as the authorized officer and representative of said corporation, and that the same was signed for and on behalf of said company, and not for or on behalf of defendant, and that plaintiff well knew this; that there was no intention on the part of plaintiff or defendant at the time of signing the instrument, that the sale or purchase of said coal was for defendant personally. It is denied that any coal was delivered to defendant under said agreement, and it is declared that long prior to the delivery of said coal defendant ceased to be an officer, agent, or representative of said corporation; that none of the six several deliveries alleged in the petition was made to defendant; that whatever coal was delivered, pursuant to said instrument, was furnished, billed, and shipped by plaintiff to said corporation; and defendant denies any promise to pay for said coal personally.

The reply is a general denial, and especially denies knowledge that defendant signed said instrument in any capacity other than personally ; that defendant did not disclose, but on the contrary concealed, the fact that he was signing said instrument in any other than his personal capacity; that in the sale and delivery of said coal personal credit therefor was extended to defendant and not to said company.

A jury was waived, and the cause was tried to the court. Judgment was duly entered for defendant. After unsuccessful motions for a new trial and in arrest, plaintiff appeals.

It is first charged that the court erred in admitting parole evidence to explain, change, or modify the terms or legal effect of the written agreement sued on, over the objections of plaintiff. In the discussion of this point, it is well to remember that the testimony shows that the orders upon which all the cars of coal were delivered, as scheduled in the petition were given by one C. F. Young, secretary of the Spring River Mines Company, successor to defendant. However, we do not hold that this fact is determinative of the issue as to whether or not defendant became personally obligated under the terms of the contract ; but, if it shall be found hereafter that defendant did not personally so obligate himself, the point goes directly to the merits of the controversy.

In support of his charge of error, as above specified, plaintiff urges that the contract is not ambiguous, and that parol evidence to explain it was therefore not admissible. Reference to the contract in question shows that it is addressed to "Mr. It. L. Winter, Trustee," and that it is marked, "Accepted: It. D. Winter, Trustee." From the arguments of parties, it reasonably may be concluded that whether or not the contract, in fact, is ambiguous, is the first issue before us, and that this question involves the word "trustee" as used in the contract. It is insisted by plaintiff that the word "trustee" is merely descriptive, and that its use in the communication does not relieve defendant from personal liability under its terms.

The testimony shows that the Maryland Zinc Company was organized and engaged in the tailing business, i. e., rerunning the...