State ex rel. Morrison Investment Company v. Trimble

• Decision Date: 20 November 1923
• Citation: 256 S.W. 171,301 Mo. 146
• Parties: THE STATE ex rel. MORRISON INVESTMENT COMPANY v. FRANCIS H. TRIMBLE et al., Judges of Kansas City Court of Appeals
• Court: Missouri Supreme Court

256 S.W. 171

301 Mo. 146

THE STATE ex rel. MORRISON INVESTMENT COMPANY v. FRANCIS H. TRIMBLE et al., Judges of Kansas City Court of Appeals

Supreme Court of Missouri

November 20, 1923

Preliminary rule discharged.

Sebree & Sebree, Mord M. Bogie and Wm. Paul Pinkerton for relator.

(1) The Court of Appeals erred in overruling assignments of error made by relator (appellant below) as to the admissibility of evidence to change or vary the terms of a written contract and in so ruling the opinion of the Court of Appeals conflicts with controlling decisions of the Supreme Court in the cases of McPherson v. Kissee, 239 Mo. 664; Herryford v. Turner, 67 Mo. 296; Tracy v. Union Iron Works, 104 Mo. 193; Crim v. Crim, 162 Mo 544; Beheret v. Myers, 240 Mo. 58. (2) The Court of Appeals erred in overruling assignment of error by relator (appellant below) and in overruling relator's motion for rehearing, and for the reason that the Court of Appeals in so ruling changed the terms of the contract in suit by judicial construction, and in so ruling the opinion of the Court of Appeals conflicts with the controlling decisions of the Supreme Court set forth above.

Watson Gage & Ess and Conger R. Smith for respondents.

The Kansas City Court of Appeals did not err in overruling assignments of error made by relator as to the admissibility of evidence alleged to have changed or varied the terms of a written contract, and said action of the Court of Appeals on said issue is not in conflict with the decisions of the Supreme Court in McPherson v. Kissee, 239 Mo. 664; Herryford v. Turner, 67 Mo. 296; Tracy v. Union Iron Works, 104 Mo. 193; Crim v. Crim, 162 Mo. 544; or Beheret v. Myers, 240 Mo. 58. See 13 C. J. sec. 498, p. 536; Laclede Const. Co. v. Moss Tie Co., 185 Mo. 61; Interior Linseed Co. v. Paint Co., 273 Mo. 443; Love v. Scatherd, 146 F. 1, 77 C. C. A. 1.

Davis, C. Railey and Higbee, CC., concur.

OPINION

DAVIS

Certiorari to the Kansas City Court of Appeals. Action to recover balance claimed to be due under a contract for the sale of certain real estate owned by plaintiffs in Kansas City, Missouri. Verdict and judgment for plaintiffs in the sum of $ 708.58. The Kansas City Court of Appeals reversed and remanded the cause on account of an erroneous instruction. Relator thinks the cause should have been reversed outright.

The facts, as set forth in the Court of Appeals opinion, are as follows:

"On March 27, 1920, plaintiff, Thomas Sandbrook, called at the office of the defendant in response to an advertisement and there entered into the following contract:

"'To W. L. Morrison Inv. Co. for and in consideration of one dollar, the receipt of which is acknowledged, I hereby appoint you exclusive agent to make sale of the real property herein described as Lots 9 and 10, in Block 4 Co'ds Brooklyn Hill Addn. Known as 2210 E. 20th St. for the price of $ 4,000 net upon the following terms $ cash, cash $ , secured by mortgage thereon for years at per cent, and you are hereby authorized to accept deposit to be applied on the purchase price, and to execute a binding contract for sale on my behalf.

"'In case above described property is sold or disposed of within the time specified, I agree to make the purchaser a good and sufficient warranty deed to the same and to furnish a complete abstract of title, if required; and it is further agreed that you shall have and may retain from the proceeds arising from such sale no per cent commission on the above price; and 100 per cent of all of the consideration for which said property is sold over and above price specified, and in case said property is sold within said time either through you or any other person, then in that case I promise to pay you 5 per cent on the whole amount for which said property may be sold.

"'This contract to continue until June 1, 1920 and thereafter until terminated by notice giving unto you as agent 10 days' notice in writing.

"'(Signed) Thos. Sandbrook.

"'(Signed) Witness.'

"The contract was on a printed form. The word and figures '$ 4,000 net' were inserted in long hand by defendant. Plaintiff, Thomas Sandbrook, testified, over defendant's objection, that upon going to defendant's office he saw one Colvin and told him he wanted $ 4,000 cash for his property; that there was a first mortgage on it which was for approximately $ 700; that before any commission could be earned by the defendant it would be necessary for it to sell the property for enough to pay off the mortgage and to give said plaintiff the sum of $ 4,000 in cash in addition; that Colvin then turned said plaintiff over to another employee of defendant and told the latter to write up the contract, said plaintiff telling the latter employee the same that he had told Colvin. This employee then wrote up the contract and said plaintiff signed it. The property was owned by both plaintiffs, who were husband and wife. The husband signed the contract intending to bind his wife as well as himself and his wife ratified the acts of her husband."

I. Relator urged that the trial court erred in admitting evidence in explanation of the words "$ 4,000 net," as did the Court of Appeals in affirming same and holding the words ambiguous. He further urges that the evidence introduced, relative to the $ 700 mortgage and the $ 4,000 to be received in addition, is in conflict with the rule of law enunciated in this court in McPherson v. Kissee, 239 Mo. 664; Herryford v. Turner, 67 Mo. 296; Tracy v. Union Iron Works, 104 Mo. 193; Crim v. Crim, 162 Mo. 554; Beheret v. Myers, 240 Mo. 58, deciding that parol evidence is inadmissible to alter, add to, contradict or vary the terms of a written instrument, since all prior or contemporaneous verbal agreements, relating to the subject-matter, are merged in the written contract. The above cases relied upon by relator, as controlling, and with which he contends the opinion of the Court of Appeals is in conflict, came to this court by direct appeal. The facts in each case are entirely different from the facts in the case at bar, and this court was clearly right in its findings therein.

In McPherson v. Kissee, supra, defendant represented in his written contract that the land he agreed to exchange was subject to two mortgages, aggregating $ 5,000. The court held parol evidence inadmissible to show a third mortgage of $ 803. Having mentioned mortgages in the written contract, the parties thereto could readily assume that the contract contained all the agreements regarding mortgages.

In Herryford v. Turner, supra, after a sale of real estate under a deed of trust, but before the execution of the deed by the trustee, the defendant, the purchaser at the sale, agreed to sell the land to plaintiff. At the request of the defendant and with plaintiff's consent, the trustee executed the deed directly to the plaintiff. At the time of the sale and the execution of the deed, the land was encumbered for taxes, to defendant's knowledge. Plaintiff paid the taxes and brought suit to recover. As the defendant did not execute the deed containing the warranty, the court held, impliedly at least, that privity did not exist between the parties.

In Tracy v. Union Iron Works, supra, the plaintiff granted defendant a lease to a certain piece of property in Kansas City. The plaintiff sued to recover rent, which defendant admitted due, but filed a counterclaim, alleging the breach of a verbal agreement on the part of plaintiff to put in a railway switch to connect the premises with a railroad nearby. The court held that a written instrument cannot, as a rule, be added to, varied or contradicted by evidence of contemporaneous or prior oral agreements.

In Crim v. Crim, supra, suit was instituted on a foreign judgment. The answer sets up fraud in the execution of the note, and the court there held (obiter dictum) that it is an invariable rule of law, that, in the absence of fraud or mistake, parol evidence is inadmissible to contradict or vary a written contract. The court said that even though there be fraud in the execution of the note constituting the cause of action, the judgment could not be attacked collaterally.

In Beheret v. Myers, supra, plaintiff brought suit for the specific performance of a contract to convey land. The contract provided that if defendants wished to withdraw the above property from market or advance the price, they agreed to give the agency a written notice of thirty days prior to such withdrawal or advance. Upon the trial the defendants introduced parol evidence from which it might be inferred that both sides assumed the contract was at an end prior to the sale to plaintiff. The court held that the contract was not ambiguous, there was no room left for construction, and the parol evidence was inadmissible.

Reading the above cases, it is evident that ambiguous words or expressions, calling for an explanation, are not to be found in the contracts. They are based on a totally distinct state of facts from the case under consideration.

It is an unquestioned rule of law, adhered to in this and other jurisdictions, that parol evidence is inadmissible to alter, add to, contradict or vary the terms of a written instrument. It is also an unquestioned rule of law that words, in a contract, constituting a latent ambiguity, may be explained by written or oral extrinsic evidence.

The question for determination is whether the present contract is free from uncertainty and ambiguity. If clear and definite extrinsic evidence, explanatory of its terms, may not be received in aid of construction or interpretation. If, on the other hand, the...