Vardeman v. Bruns
| Decision Date | 31 December 1917 |
| Docket Number | No. 12626.,12626. |
| Citation | 199 S.W. 710 |
| Parties | VARDEMAN et al. v. BRUNS et al. |
| Court | Missouri Court of Appeals |
Appeal from Circuit Court, Cole County; Jack G. Slate, Judge.
"Not to be officially published."
Action by R. W. Vardeman and S. S. Shields, composing the firm of R. W. Vardeman & Co., and doing business under the name and style of the Merchants' Delivery Company, against Joseph Bruns and Ben H. Bruns, copartners, doing business under the name and style of Bruns Bros. Judgment for defendants, and plaintiff's appeal. Affirmed.
T. H. Antrobus and James H. Lay, both of Jefferson City, for appellants. Calfee & Westhues, of Jefferson City, for respondents.
In November, 1915, plaintiff, Vardeman, went to Jefferson City for the purpose of looking over the field with a view to establishing a package delivery system among the merchants there. This delivery system was to be used by the merchants, and was to take the place of the latter doing their own delivering. From 30 to 40 of the merchants, including defendants, signed what was called a preliminary list. This was in no way binding upon the parties; it was only for the purpose of finding out whether enough merchants would go into the proposition to make the establishment of a delivery service advisable. As the holidays were approaching Vardeman left the city, and after the first of the year returned. On February 16, 1916, defendants signed a contract for the delivery service, but afterwards refused to make use of it or pay for the same, resulting in this suit for damages for an alleged breach of the contract. On a trial the verdict was for defendants, and plaintiffs appealed.
The defense was that the contract never became operative on account of the nonhappening of a condition precedent to its operation. In support of this contention the defendants testified that it was agreed orally that the contract was not to become operative until Vardeman secured similar contracts from Hemmell, Kleene Bros., Ruther, Kolkmeyer, and Coulter, defendants' competitors in the west end of Jefferson City. Of these five only one, Coulter, took the service. Defendants also testified that it was orally agreed that the contract would not be binding until the morning that plaintiffs started the delivery service, and until that time defendants had the privilege of withdrawing from it. There was further testimony that this contract, together with the others, was to be, and was, placed in the hands of one O. W. Wright, a merchant of Jefferson City, who was to take the service, to be held by him until such time as it was seen whether or not sufficient money could be secured by these contracts to establish the system in Jefferson City, and, if not, the contracts were to be of no effect; that after all the contracts were signed a banquet would be held, and all of the merchants who signed the contracts were to attend the banquet, and if there was anything that was not satisfactory the contracts were to be torn up.
In plaintiffs' instruction No. 1, given by the court, the jury were told that, if it was the understanding and agreement that plaintiffs were to secure contracts from Hemmell, Kleene Bros., Ruther, and Kolkmeyer, and that these parties refused to enter into such contracts, their verdict should be for de...
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...showing that a writing never acquired original vitality as a contract are admissible in evidence. Barrett v. Davis, 104 Mo. 549; Vardeman v. Bruns, 199 S.W. 710. Upon the same theory showing the purpose of delivering a deed is proper. Poplin v. Brown, 200 Mo.App. 255; Johnson v. W. O. W., 1......
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