Trustees of Christian University v. Hoffman

• Citation: 69 S.W. 474,95 Mo.App. 488
• Parties: TRUSTEES OF CHRISTIAN UNIVERSITY, Respondents, v. G. A. HOFFMAN, Appellant
• Decision Date: 24 June 1902
• Court: Court of Appeal of Missouri (US)

69 S.W. 474

95 Mo.App. 488

TRUSTEES OF CHRISTIAN UNIVERSITY, Respondents, v. G. A. HOFFMAN, Appellant

Court of Appeals of Missouri, St. Louis

June 24, 1902

Appeal from Marion Circuit Court.--Hon. David H. Eby, Judge.

AFFIRMED (conditionally).

Reversed and remanded.

George A. Mahan and Reuben F. Roy for appellant.

(1) The last word of the instruction asked by defendant should have been read as "defendant" instead of "plaintiff," and the instruction thus given disregarding the clerical error. Fischer v. Packing and Provision Co., 77 Mo.App. 108; Bank v Goldsell, 8 Mo.App. 596; Shortell v. City of St Joseph, 104 Mo. 115. (2) While parol evidence will not be received to contradict or vary a written agreement, still if a part only of the contract be put in writing, the matter left out may be supplied by parol evidence. Black River Lumber Co. v. Warner, 93 Mo. 374; Plumb v. Cooper, 121 Mo. 668; Greening v. Steele, 122 Mo. 287; Kenepick v. Type Foundry Co., 72 Mo.App. 381; Norton v. Bohart, 105 Mo. 615. (3) The rule does not apply where the original contract was entire and a part only reduced to writing. Brown v. Bowen, 80 Mo. 189. (4) Where the writing binds only one party, and there is nothing to show the consideration or reciprocal obligation to bind opposite party, it may be shown by parol. Sanders Pressed Brick Co. v. Real Estate Co., 86 Mo.App. 169. (5) The consideration for a promise may well be contingent; that is, it may consist in the doing of something by the promisee which he need not do unless he chooses, but which being done by him, the contract is complete and the promise binding. German v. Tilbert, 83 Mo.App. 141. (6) A condition of a promise, when that condition is complied with, may constitute a legal consideration. Lindell v. Rokes, 60 Mo. 249. (7) A subscription to an endowment may be shown to have been upon condition, as a consideration, which condition has failed. Grand River College v. Robertson, 67 Mo.App. 329; s. c., 72 Mo.App. 7; Simpson Centenary College v. Tuttle, 71 Iowa 596. (8) The real consideration of the defendant's promise was the performance of the condition that the endowment should be raised to $ 50,000 by June 2, 1904. That could be shown by parol. Grand River College v. Robertson, 67 Mo.App. 329; Simpson Centenary College v. Tuttle, 71 Iowa 596. (9) This promise is unilateral. The reciprocal promise, obligation, or condition resting upon plaintiff existed only in parol, and yet when the defendant offers to show by parol what the inducement was for his promise he is told in spite of the statute and a long line of decisions that failure or want of consideration can be shown, that he is bound by his promise as written, while the plaintiff is permitted to show a parol consideration, and, mirabile dictu, that consideration consists in making expenditures in reliance on defendant's written promise in spite of his oral understanding that he was not to pay unless $ 50,000 was raised. (10) The finding of the court can be justified on the theory that, while the original promise may have been given on condition that the endowment should be raised to $ 50,000 by June 2, 1894, yet the defendant in 1896, unconditionally promised to pay the amount, because such new promise was not within the issues raised by the pleadings and was objected to by the defendant on that ground. State ex rel. v. Roberts, 62 Mo. 338; Mathias v. O'Neil, 94 Mo. 520; Eddy v. Baldwin, 32 Mo. 369; Burkholder v. Henderson, 78 Mo.App. 287. (11) The allowance of compound interest is error apparent on the face of the record proper, and it was not necessary to raise that point by motion for a new trial or in arrest. Ryan v. Growney, 125 Mo. 474.

O. C. Clay and B. F. Glahn for respondent.

(1) The court did not err in refusing the instruction asked by the defendant. It may well be doubted whether the court would have been justified in reading the last word of the instruction as "defendant" instead of "plaintiff" as written. Stegman v. Berryhill, 72 Mo. 307; Brink v. Railway, 17 Mo.App. 177. (2) A party to whom a written proposal for a subscription is made by an intermediary, must not rely upon the oral statements of the intermediary, varying the terms of the written proposal, unless he knows that the intermediary has authority from the other party to make such oral agreements. Perkins v. Bakrow, 45 Mo.App. 248. (3) Gratuitous subscription for a charitable purpose may be enforced if the promisee has (since the promise) expended money or assumed obligations that will result in loss unless the subscription be paid. The mutual promise of the subscriber forms the consideration of the contract, and it is immaterial that the subscriptions are payable to a third party. Hotel Co. v. Smith, 13 Mo.App. 7; Methodist Orphan's Home Ass'n v. Shark, 6 Mo.App. 150; Koch v. Lay, 38 Mo. 147; Pitt v. Gentle, 49 Mo. 74; James v. Clough, 25 Mo.App. 147; Workman v. Campbell, 46 Mo. 305. (4) It has been held repeatedly that where parties have reduced their contract to writing, it will be conclusively presumed, in the absence of fraud, accident, or mistake, that such writing includes the whole agreement, and the extent and manner of the undertaking, and that they will not be permitted to add to nor vary its terms by parol testimony. Dearmin v. Schnell, 71 Mo.App. 503; Loan & Trust Co. v. Workman, 71 Mo.App. 275; County of Johnson v. Wood, 84 Mo. 489. (5) But appellant can not complain along this line because all the parol testimony he offered along this line was admitted by the court over plaintiff's objection, and permitted to remain in over plaintiff's motion to strike it out. Where the note or instrument of writing sued on is on its face, an absolute and unconditional promise to pay the sum of money therein specified, the defendant can not be allowed to show an oral agreement, either contemporaneous or prior, that the payment of the money should depend upon a certain contingency or performance of a certain condition. To permit such would be to violate the well-established rule that oral testimony is inadmissible to vary or contradict the terms of a written instrument. Jones v. Shaw, 67 Mo. 667; Massmann v. Holscher, 49 Mo. 87; Reed v. Nicholson, 37 Mo.App. 646; Pearson v. Carson, 69 Mo. 550; Jones v. Jeffries, 17 Mo. 577; Benson v. Harrison, 39 Mo. 303; Williams v. Stifel, 64 Mo.App. 138. (6) Where the excess of the judgment can be easily ascertained from the findings, appellant should be permitted to remit such excess in the appellate court, and the judgment affirmed for the balance. Warder v. Henry, 117 Mo. 530.

BARCLAY, J. Bland, P. J., and Goode, J., concur.

OPINION

BARCLAY, J.

Plaintiffs are the trustees of Christian University, an educational institution located at Canton, Missouri, and a corporation.

The action is upon an instrument of writing which we shall call a note, without any critical inquiry into its proper classification. It is as follows:

"1,000.00 "St. Louis, Mo., June 2, 1891.

"This is to certify that I have promised one thousand dollars to the board of trustees of Christian University to be added to the permanent endowment fund on the following conditions:

"That no part of this amount is to be due until four years from date, when $ 200 will be due, and $ 200 annually after that date. Also this promise is without interest until three years from date (in 1894). It shall become interest-bearing June 2, 1894, at the rate of six per cent per annum.

"G. A. HOFFMAN."

Defendant's answer admits the execution of the instrument, pleads that it was "wholly without consideration," and made upon an express understanding that the sums mentioned therein were not to be given unless the permanent endowment fund of Christian University (the real plaintiff) should amount to $ 50,000 on or before June 2, 1894, and that said fund never reached that sum.

The reply of plaintiffs denied the new matter of the answer. The cause then came on for trial before Judge EBY, a jury having been waived.

Plaintiffs introduced the note in evidence together with proof of demand of the several installments as they became due by the terms of the paper.

The defendant's testimony tended to show that he executed the instrument at the request of a representative of plaintiffs, employed to solicit subscriptions to the endowment fund of plaintiffs, and that it was upon the oral condition that the endowment fund (of which this subscription was to be a part) should reach $ 50,000 within three years from the date of defendant's promise.

Plaintiffs objected and excepted to the reception of the testimony bearing upon the said condition annexed to the instrument, but the court admitted the testimony, nevertheless.

Defendant's evidence further went to show that the endowment fund never reached the sum of $ 50,000. It was far below that sum at the last date of its estimate mentioned by any of the witnesses at the trial.

In rebuttal there was considerable uncontradicted evidence to show that the board of trustees of the university made obligations, and expended money for the improvement and repair of its property, employed teachers and conducted their institution continuously during the scholastic months from June, 1891, to the time of the trial, in reliance upon defendant's note aforesaid, and others similar thereto.

There was further evidence on the part of plaintiffs tending to show that in July, 1896, defendant made a new promise corroborating that in the paper sued upon; and that he, at that time, made no claim of, or allusion to, any conditional promise whatsoever.

Defendant rejoined by a denial of the statements as to the new promise.

The foregoing outline of testimony is sufficient for the purpose of this review.

No declarations of...