Smith v. Crane
| Decision Date | 03 March 1913 |
| Citation | 154 S.W. 857,169 Mo.App. 695 |
| Parties | JAMES L. SMITH, Administrator of the estate of C. J. SMITH, deceased, Respondent, v. W. S. CRANE and H. E. GERKE, Appellants |
| Court | Missouri Court of Appeals |
Appeal from Jasper Circuit Court. Division Number One.--Hon. Joseph D. Perkins, Judge.
REVERSED AND REMANDED (with directions).
Reversed and remanded.
Thomas & Hackney for appellants.
(1) A contract, whether oral or in writing, between the parties may be abandoned and a new contract made to supersede the same and if so made the suit must be upon the new contract and no suit can be maintained upon the old, and the making of the new contract is a sufficient consideration for the abandonment of the previous contract. Choteau v. Iron Wks., 83 Mo. 73, s. c., 94 Mo. 388; Creamery Package Co. v. The Sharples Co., 98 Mo.App. 207; Seligman v Rogers, 113 Mo. 658; Wilson v. Duffey, 158 Mo.App. 518; Lanitz v. King, 93 Mo. 519; Pottery Co. v. Folckemer, 131 Mo.App. 106; Mulliken v Haseltine, 160 Mo.App. 13; Schneider v. Chew, 157 Mo.App. 354; Welch v. Mischke, 154 Mo.App. 728, 734; Scriba v. Neely, 130 Mo.App. 258. (2) The trial court erred in ruling that the making of the new contract was not a sufficient consideration for the abandonment of the previous agreement. And carrying out this erroneous ruling the trial court erred in excluding part of the evidence of Mrs. Richardson and part of the deposition of witness, Arthur R. Morrison, and erred in each of the instructions given for plaintiff in requiring the jury to find that there was a valuable consideration moving from the defendants to the deceased, Smith, before they could find that the new contract became substituted for the one sued on. See authorities cited under point 1. (3) The court erred in excluding the written contract made between Carey J. Smith and the defendant, Gerke. In determining the meaning of a contract and the intent of the parties to it, the court will look at the circumstances under which the contract was made, the relations and occupations of the parties, the uses of business and all other writings bearing on the subject-matter in issue, and determine what they must have mutually understood and expected the agreement to cover, and the court should adopt the interpretation most likely to give effect to the intention of the parties. Greason v. Railroad, 112 Mo.App. 130; Carney v. Water & Light Co., 76 Mo.App. 532. (4) The court erred in excluding the testimony of Mrs. Anna Richardson and Arthur Morrison at to what was said by Carey J. Smith and the defendants, W. S. Crane and H. E. Gerke, in the office of Thomas & Hackney on the 22nd day of November, 1910, the date the new option was taken; and the court erred in striking out testimony of Mrs. Anna Richardson. Carey J. Smith being dead and this suit being brought by his administrator, the mouths of the defendants were closed. This being the case the courts will allow all testimony, however remote, bearing on the question at issue, and this evidence was clearly competent as tending to show an abandonment of the claim by Smith under the contract sued on and a substitution therefor of a new contract and a new arrangement. Cole v. Waters, 164 Mo.App. 574. (5) In view of the importance of newly discovered evidence and the show of diligence made by defendants, it was clearly the duty of the trial court to have granted the defendants a new trial in order that injustice should not be done. Gould v. St. John, 207 Mo. 619, 632; Taylor v. Railroad, 163 Mo. 183; Bank v. Wood, 124 Mo. 72. (6) The options from Richardson to Smith and Gerke, each relating to the sale of land, expired according to the dates fixed in the several writings and the extensions indorsed thereon. No oral agreement to extend either option could be effective for that purpose for the reason that to give such oral agreement this effect would be in violation of the statute of frauds; and inasmuch as the statute of frauds requires contracts touching the sale of lands to be in writing, then any extension of such contracts or modifications of them must likewise be evidenced by writing and cannot rest in parol. Warren v. Mayer Mfg. Co., 161 Mo. 112; Rucker v. Harrington, 52 Mo.App. 481. (7) The trial court in giving instruction No. 1 for the plaintiff erred in ruling that the sale of the 1-6 interest by Richardson to Morrison was such a sale as was contemplated by the parties in the written instrument sued on, on the making of which Smith would be entitled to recover $ 2500 from the defendants. In giving this instruction the court shut its eyes to all of the oral testimony as to the construction placed upon this contract by the parties; and as a result the court made a contract against the defendants and in favor of Smith, which neither Smith nor either of the defendants had considered ever to exist. This construction is diametrically opposed to the construction placed upon this contract by Smith and Crane when they went to Richardson on the 21st day of November asking him to give a new option, and when the parties met on November 22, 1910, and consummated the arrangement for the new option. This construction prohibited the jury from giving the construction to the written contract which was justified by the conduct, actions, statements and course of dealing of the parties thereto. Where the parties to a contract have given the contract a practical construction and particularly one that is reasonable and fair to both parties, such construction is a proper guide to the court in determining their meaning. Patterson v. Camden, 25 Mo. 21; Union Depot Co. v. Railroad, 131 Mo. 305; Bolt and Nut Co. v. St. L. Car Co., 210 Mo. 736; Tetley v. McElmurry, 201 Mo. 394; Sawyer v. Sanderson, 113 Mo.App. 250; Ellis v. Harrison, 104 Mo. 279; Gas Light Co. v. St. Louis, 46 Mo. 121.
McReynolds & Halliburton for respondent.
(1) The rule invoked by the plaintiff that a contract between parties may be abandoned and a new contract substituted, and that under such circumstances no recovery can be had on the old contract as the making of the new contract is sufficient consideration for the abandonment of the previous contract has no application to the case at bar, because there was no evidence of any subsequent contract. Proof of an oral contract must be specific, certain and definite, mere generalities are not sufficient. It must be such that Smith could have recovered on in court, had his rights accrued. Burks v. Stam, 65 Mo.App. 455; Wesson v. Horner, 25 Mo. 81; 9 Cyc. 248. (2) The court was right in excluding the evidence of Mrs. Richardson and Arthur Morrison for two reasons: First, because the evidence did not tend to support the allegations in the answer, which plead a specific contract, reciting that Carey J. Smith was to be paid the sum of $ 1,666.66 out of the proceeds of the sale of the two-thirds interest. Neither Morrison, Mrs. Richardson nor Hackney testified to any such fact. Second, the second reason why it was proper to exclude said evidence was that there was nothing in said evidence to show any contract on the part of Carey J. Smith, supported by a valid consideration, which was to take the place of the former agreement. (3) It is elementary law that, when an agreement has no legal consideration to support it, it cannot be made the basis of a cause of action, nor of an affirmative defense, and the question of which party is to suffer by it depends upon which party is forced to rely upon it. Ward v. Hartley, 178 Mo. 135. (4) It has been repeatedly held that the mere statement that a commission will not be paid, or that a commission will not be claimed, where a broker or an agent has performed his contract, when that statement is not supported by consideration of any kind or character, will not relieve the party liable for the commission. Metcalf v. Kent, 73 N.W. 1037; McComb v. Von Ellert, 27 N.Y.S. 372; Moskowitz v. Hornberger, 46 N.Y.S. 462; Rohkohl v. Sussman, 113 N.Y.S. 586; Dayton v. Barge Co., 73 N.Y.S. 316; Burd v. Webster, 128 Wis. 118; Bishop v. Averill, 49 P. 237, 50 P. 1024. (5) There was no consideration moving from Smith to Gerke or Crane. He had done nothing to support any claim for commissions out of the sale of the remaining two-thirds, and any claim he might have made must inevitably have failed for lack of consideration. He could not claim waiver of his original contract, because appellants say it had lapsed, and consequently he had nothing to waive. He could not claim services already rendered, for that consideration was past, and under the law will not support an agreement to pay. 9 Cyc. 358, par. 14; Allen v. Bryson, 67 Iowa 591, 25 N.W. 820, 56 Am. Rep. 358; Woodrum v. Renshaw, 32 Mo. 197; Kingenfelder v. Brewing Co., 103 Mo. 578; Peck v. Harris, 57 Mo.App. 467. (6) Instruction No. 3 of appellant was properly refused. In that instruction the law is declared to be that the option under which the parties were making the sale, expired at midnight November 15, 1910. Under the facts in this case, that was one of the issues to be determined by the jury, and the jury found that the option had not expired, but had been extended and that the sale was made under the rights given Smith. An appellate court will not interfere with the findings of the jury supported by any substantial evidence, even though the preponderance of the evidence is greatly against such finding. Bond v. Railroad, 110 Mo.App. 131; Harrison v. Lakenan, 189 Mo. 581; Dowling v. Wheeler, 117 Mo.App. 169; McNulty v. Railroad, 203 Mo. 475; Hurley v. Railroad, 120 Mo.App. 262; Wood v. Railroad, 119 Mo.App. 78; Wayland v. Johnson, 130 Mo.App. 80; Peck v. Traction Co., 131 Mo. 134. (7) The trial court did not err in refusing to grant a motion for new trial. This was a matter which was...
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