Simpson Advertising Service Co. v. Manufacturers' & Merchants' Ass'n of St. Louis

• Decision Date: 10 June 1932
• Docket Number: 30352
• Citation: 51 S.W.2d 1019,330 Mo. 1049
• Parties: Simpson Advertising Service Company, a Corporation, v. Manufacturers' and Merchants' Association of St. Louis, a Corporation, Appellant
• Court: Missouri Supreme Court

51 S.W.2d 1019

330 Mo. 1049

Simpson Advertising Service Company, a Corporation, v. Manufacturers' and Merchants' Association of St. Louis, a Corporation, Appellant

No. 30352

Supreme Court of Missouri

June 10, 1932

Appeal from Circuit Court of City of St. Louis; Hon. Victor H Falkenhainer, Judge.

Affirmed.

Carter Jones & Turney, James E. Garstang and Richard S Bull for appellant.

(1) Admissions by corporate directors, as individuals, and officers' knowledge received in a transaction affecting them privately and outside the range of official duties, are not binding upon a corporation. The testimony of plaintiff's president, therefore, that a statement to the effect that defendant had bought a thousand sets of posters was made by one of defendant's directors to another director and officer, who was undertaking to sell materials to plaintiff, was incompetent and the admission of such testimony constituted reversible error. 14a C. J. 487, secs. 2355, 2356; Kearney Bank v. Froman, 129 Mo. 430; Kegan v. Bank (Mo.), 8 S.W.2d 870; Bartlett v. McAllister (Mo.), 289 S.W. 818; Benton v. Bank, 122 Mo. 339; Bank v. Lovitt, 114 Mo. 526; Johnston v. Shortridge, 93 Mo. 232; St. Louis etc. Bridge Co. v. Union Electric Co., 268 S.W. 408. (2) The testimony of plaintiff's president that the president of defendant association had told him what defendant's obligation was and had said, "I told the directors I thought we owed you for these posters" was incompetent and its admission over defendant's objection was error because such statement, if made, was but the expression of an opinion and related not to any impending transaction, but to a past event; moreover, it was a declaration outside the scope of defendant's authority and made by him as an individual, not as an officer of defendant. Authorities cited under Point 1 above, and 2 Jones, Commentaries on Evidence (2 Ed.) secs. 950, 980, 981, pp. 1753, 1799-1803; 22 C. J. pp. 299, 386, secs. 326, 460; Wright Inv. Co. v. Fillingham, 85 Mo.App. 540; McDermott v. Railway, 87 Mo. 299; Atkinson v. School of Osteopathy, 240 Mo. 355; Levi & Co. v. Railroad, 157 Mo.App. 545. (3) Defendant was entitled to introduce in evidence the express written agreement between the parties, defendant's Exhibit B, and also evidence of any facts tending to prove that the rights of the parties should be determined by such agreement. (a) Plaintiff's testimony being that there was an agreement, based upon a verbal order given by defendant, plaintiff was not thereby precluded from suit and recovery on a plea of quantum meruit. Hoyt v. Buder, 318 Mo. 1155; Mansur v. Botts, 80 Mo. 656. (b) Upon such a plea and showing by plaintiff, however, defendant was entitled to introduce a subsequent written contract showing the true agreement, by which the rights of the parties were fixed. Defendant was so entitled either under its general denial or under its affirmative plea stating the nature of the agreement entered into, and the exclusion from evidence of defendant's Exhibit B was therefore erroneous. 13 C. J. 737, sec. 875; 40 Cyc. pp. 2844, 2846, 2849; Jones v. Rush, 156 Mo. 371; Wilkerson v. Farnham, 82 Mo. 679; Stout v. Tribune Co., 52 Mo. 347; Walsh, Admr. v. Venable, 219 Mo.App. 383; Hellmuth v. Benoist, 144 Mo.App. 699; Ruemmeli Manufac. Co. v. May, 231 S.W. 1033; Parker Corn Co. v. Sexton, 217 S.W. 616; Owen v. Hadley, 171 S.W. 975; American Surety Co. v. Const. Co., 166 S.W. 333; Hudson v. Rodgers, 121 Mo.App. 176; Stewart v. Thayer (Mass.), 49 N.E. 1020. (4) Under the evidence, plaintiff was not entitled to recover, and defendant's demurrer at the close of the entire case should have been sustained. (a) A written agreement between the parties having been proved, all prior negotiations and conversations were merged therein, and the rights of the parties must be determined by such agreement. This agreement defeated plaintiff's right to recover. Douglass v. Hammel, 313 Mo. 524; Koob v. Ousley, 240 S.W. 105; Elliott v. Winn, 305 Mo. 114; Berberet v. Myers, 240 Mo. 75; Morgan v. Porter, 103 Mo. 140; State ex rel. v. Hoshaw, 98 Mo. 360; Beagles v. Robertson, 115 S.W. 1042. (b) The appellate court will not hesitate to reverse outright a verdict for plaintiff and to direct that judgment be entered for defendant, where all the facts are disclosed by the record, and where no verdict for plaintiff can stand. Block v. U. S. F. & G. Co., 316 Mo. 278; Evans v. Railroad, 289 Mo. 505; College v. Dockery, 241 Mo. 561; Sanford v. Herron, 161 Mo. 188; Ehrlich v. Insurance Co., 103 Mo. 241.

Taylor, Chasnoff & Willson and James V. Frank for respondent.

(1) The trial court did not err in permitting plaintiff's president to testify that Lloyd Scruggs, a director of appellant association, stated to a vice-president of appellant association, in his presence, "Beckemeyer, you know we have bought a thousand sets of posters." Compton v. Louis Rich Construction Co., 287 S.W. 474; Ludwig v. Central Mo. Power & Light Co., 24 S.W.2d 628; Minea v. Cooperage Co., 179 Mo.App. 714; Phillips v. Railroad, 211 Mo. 441; O'Donnell v. Life Ins. Co., 277 S.W. 975; State ex rel. Life Ins. Co. v. Trimble, 276 S.W. 1020; Porterfield v. Amer. Surety Co. of N. Y., 210 S.W. 124; Malecek v. Tower Grove Ry. Co., 57 Mo. 21; Fowles v. Loan Co., 86 Mo.App. 107; Meux v. Haller, 179 Mo.App. 473; Magnolia Compress & W. Co. v. Railroad Co., 210 S.W. 127. (2) Appellant cannot complain of the action of the trial court in permitting plaintiff's president to testify that the president of defendant association said, "I told the directors I thought we owed you for these posters." Murphy v. Met. Street Ry. Co., 125 Mo.App. 278; Monahan v. K. C. Clay & Coal Co., 58 Mo.App. 75; Ternetz v. St. Louis Lime & Cement Co., 252 S.W. 65; Holton v. Cochran, 208 Mo. 314; Taylor v. Pullen, 152 Mo. 434; Menard v. Goltra, 40 S.W.2d 1053. (a) The trial court did not err in permitting plaintiff's president to testify that the president of the defendant association said, "I told the directors I thought we owed you for these posters." Pitts v. Steele Merc. Co., 75 Mo.App. 233; Hay v. Fire Clay Co., 179 Mo.App. 577; Klaber v. Fidelity Building Co., 19 S.W.2d 763; see, also, cases cited under points and authorities 1, above. (b) An admission against interest is not incompetent because it relates to a past transaction. Hay v. Fire Clay Co., 179 Mo.App. 577; Wigmore on Evidence (2 Ed.) sec. 1048. (c) Appellant is precluded from asserting on this appeal that the statement related to a past and completed event, and was the expression of a mere opinion. Coughlin v. Hausesser etc., 50 Mo. 129; St. Louis v. Railroad, 248 Mo. 26; Compton v. Louis Rich Const. Co., 287 S.W. 483. (3) The trial court did not err in excluding defendant's Exhibit B. (a) Plaintiff's case was properly tried and submitted on the theory of a quantum meruit, and recovery was properly limited to the contract price. Mansur v. Botts, 80 Mo. 651; Cunningham v. Elvins, 194 S.W. 517; Hoyt v. Buder, 6 S.W.2d 952. (b) Defendant's Exhibit B was properly excluded, because it was not pleaded. Colburn v. Krenning, 220 S.W. 940; Brown Const. Co. v. MacArthur Bros. Co., 236 Mo. 50; Harrison v. Ry. Co., 74 Mo. 374; Moore v. Renick, 95 Mo.App. 210; Glass v. Heller, 287 S.W. 873. (c) Defendant's answer (Abs., p. 3) did not plead Exhibit B. 49 C. J. 80, sec. 73; Pye v. Rutter, 7 Mo. 548; Koewing v. Greene County B. & L. Assn., 38 S.W.2d 44. (d) Defendant's Exhibit B was not admissible under a general denial. 13 C. J. p. 736, sec. 873. (e) Defendant's answer did not plead performance of Exhibit B, nor did defendant offer to prove performance. 13 C. J. 740, sec. 880. (f) Exhibit B was properly excluded, because it did not show on its face: (1) That it purported and intended to cover, settle and dispose of all prior dealings between the parties pertaining to the same subject-matter; or (2) did not show that it was the only agreement between the parties. (g) The trial court did not err in refusing to allow the cross-examination of plaintiff's president with respect to the meaning and purpose of Exhibit B. Vardell v. Store Co., 4 S.W.2d 479; Woodridge v. Bryan, 270 S.W. 662. (h) The court properly excluded the minutes of the board of directors of appellant's association having to do with Exhibit B. 4 Jones on Evidence (2 Ed.) p. 3177; Thompson on Corporations, sec. 7740. (4) The trial court did not err in overruling defendant's demurrer at the close of the case. (a) It does not appear from the face of defendant's Exhibit B that it purported and intended to cover and dispose of all prior dealings pertaining to the same subject-matter. 13 C. J. 598, sec. 617; Porterfield v. Amer. Surety Co., 210 S.W. 124; England v. Houser, 163 Mo.App. 8; Broadway Bank v. Schlater, 17 S.W.2d 594; Craig v. Garnier, 39 S.W.2d 462. (b) Defendant's Exhibit B, on its face, does not purport, nor does it show, an intention to settle all prior dealings or waive any rights. Harrison v. Ry. Co., 74 Mo. 373; Luckey v. Railroad, 133 Mo.App. 589; Hoover v. Railroad, 113 Mo.App. 688; Fountain v. Ry. Co., 114 Mo.App. 680. (c) There was no merger of any prior oral agreement into defendant's Exhibit B. 13 C. J., p. 598, sec. 616; Porterfield v. Amer. Surety Co., 210 S.W. 124; Davis v. Culmer, 295 S.W. 805; England v. Houser, 163 Mo.App. 8. (5) Plaintiff's Instruction 1 is based upon the theory of quantum meruit and properly limited recovery to the contract price shown in evidence.

OPINION

White, P. J.

The plaintiff brought suit in quantum meruit, alleging that about January 15, 1927, "at the special instance and request of the defendant he furnished to and for the benefit of the defendant certain services, materials and finished products in the creation, designing and manufacture for the defendant...