Shaffner v. Moore Shoe Co.
| Decision Date | 03 March 1931 |
| Docket Number | No. 21334.,21334. |
| Citation | 35 S.W.2d 935 |
| Parties | SHAFFNER v. MOORE SHOE CO. |
| Court | Missouri Court of Appeals |
Appeal from St. Louis Circuit Court; Robert W. Hall, Judge.
"Not to be officially published."
Action by Louis S. Shaffner against the Moore Shoe Company. From an order overruling motion to set aside involuntary nonsuit, plaintiff appeals.
Affirmed.
See also 3 S.W.(2d) 263.
Taylor R. Young, of St. Louis, for appellant.
A. & H. N. Arnstein, of St. Louis, for respondent.
Louis S. Shaffner sued the Moore Shoe Company, in the city of St. Louis, to recover a balance of $693, alleged to be due on a building contract. The total amount of the contract was $48,433. Plaintiff was compelled to take an involuntary nonsuit, and from the court's action in overruling the motion to set the same aside, plaintiff has appealed.
This is the second appeal of this case to this court. We reversed and remanded the cause upon the first appeal, because the court permitted the introduction of parol evidence to vary the terms of an unambiguous written contract. Shaffner v. Moore Shoe Co., 3 S. W.(2d) 263.
Plaintiff, in his amended petition, alleged that on the 16th day of February, 1924, the defendant had an architect prepare certain plans and specifications for the erection and construction of a factory building; that said plans and specifications were dated February 16, 1924; that the defendant requested the plaintiff to make a price for the construction of said factory building, and submit the same to defendant in accordance with the plans and specifications aforesaid; that plaintiff did between the dates of February 16, 1924, and March 6, 1924, submit certain figures for the erection and construction of said building, for the total sum of $49,136; that thereupon the defendant requested plaintiff to eliminate some portion of said building as shown by said plans, which would reduce the construction cost of said building; and that plaintiff suggested that said plans calling for the construction of a storage room be eliminated, which would reduce the figures so submitted by plaintiff in the sum of $693. Whereupon plaintiff and defendant entered into a contract and agreement, partly in writing and partly in parol, by the terms of which plaintiff was employed by the defendant to erect and construct said factory building, and plaintiff agreed with defendant to furnish all labor and materials and to erect for defendant a new two-story building in accordance with the plans and specifications, changed and modified so as to eliminate the construction of the storage room, for the price and sum of $48,433; it being verbally agreed at the time between plaintiff and defendant that the plans and specifications should be changed and modified in such manner as to eliminate the construction of the storage room. It is then alleged that the written portion of said contract is in words and figures as follows:
Plaintiff further stated that in accordance with the verbal agreements as aforesaid, the plans and specifications were changed on or about the 15th of March, 1924, so as to eliminate the storage room, so that the part of the verbal portion of said agreement was then reduced to writing, although plaintiff charges that said specifications were never in fact actually changed; that plaintiff in the meantime and afterwards began the erection of the building in accordance with the terms of the contract, and completed the same; that the original specifications were never in fact actually changed so as to eliminate the construction of said storage room; that the defendant, its officers and agents, waived...
To continue reading
Request your trial
-
Lewis v. Lewis
... ... Scott County Bank, 63 S.W.2d 456; ... Ketchum v. Miller, 37 S.W.2d 635; Stephens v ... Moore, 249 S.W. 60. (3) There is no allegation in the ... pleading and no claim and no proof that the ... nothing, and living apart is not the purpose. Shaffner v ... Moore Shoe Co., 35 S.W.2d 935; Barlow v. Scott, ... 85 S.W.2d 504; Reed v. Cooke, 55 ... ...
-
Grapette Co. v. Grapette Bottling Co.
...contract apparently full and complete. Phoenix Mut. Life Ins. Co. v. Goessling, Mo.App., 121 S.W.2d 182, 185(3); Shaffner v. Moore Shoe Co., Mo.App., 35 S.W.2d 935, 937(2); Harrington v. F. W. Brockman Commission Co., 107 Mo.App. 418, 81 S.W. 629, 630(2). Certainly, the license agreement di......
-
Ellis Gray Mill. Co. v. Sheppard
...change or modify its provisions and such modification may be shown by parol evidence. Davis v. Scovern, 130 Mo. 303; Shaffner v. Moore Shoe Co., 35 S.W.2d 935; McClure v. Wilson, 185 S.W.2d 878. (7) The issue of whether this contract was modified was questions of fact for the trial court, w......
-
McClure v. Wilson
... ... was modified by parol. This could have been legally done ... [Shaffner v. Moore [238 Mo.App. 832] Shoe Co. (Mo. App.), 35 ... S.W.2d 935; Davis v. Scovern, 32 S.W. 986, ... ...