Walker v. Overland Automobile Co.

• Decision Date: 06 February 1917
• Docket Number: No. 14571.,14571.
• Citation: 191 S.W. 1061
• Parties: WALKER v. OVERLAND AUTOMOBILE CO.
• Court: Missouri Court of Appeals

191 S.W. 1061

WALKER v. OVERLAND AUTOMOBILE CO.

No. 14571.

St. Louis Court of Appeals. Missouri.

February 6, 1917.

Rehearing Denied February 20, 1917.

Appeal from St. Louis Circuit Court; George C. Hitchcock, Judge.

"Not to be officially published."

Action by George W. Walker against the Overland Automobile Company. From a judgment for defendant on plaintiff's cause of action, and for plaintiff on defendant's counterclaim, plaintiff appeals. Judgment affirmed.

Henry B. Davis, Charles Erd, and Robert A. Thomann, all of St. Louis, for appellant. Jones, Hocker, Sullivan & Angert, C. P. Ellerbe, and James C. Jones, Jr., all of St. Louis, for respondent.

BECKER, J.

This is an action, originally brought in the justice of the peace court, by plaintiff, appellant, against the defendant company, a corporation, to recover the sum of $200 which was deposited by the plaintiff as a guaranty for the faithful performance of a contract for the purchase of a certain number of automobiles, which sum so deposited the contract provided —

"shall be returned or accounted for at the expiration of the contract; it is understood between the parties hereto that the company relies upon the performance of this contract by the dealer and has accordingly entered into obligations and incurred expenses therefor, and it is agreed between the parties hereto that the said sum shall be held by the company until it shall have been determined in the event of the failure to perform all of his part of this contract, the amount of expense, cost and damage sustained by the company by reason of the dealer's failure to perform the contract and shall have deducted this said expense, costs and damage from the deposit of the dealer as aforesaid."

The petition filed by the plaintiff alleges the faithful performance of the contract on his part and a breach thereof on the part of the defendant, in that the defendant company wholly failed to deliver all or any one of said automobiles to plaintiff under the contract, and alleges the refusal to repay plaintiff the sum of $200, or any part thereof, deposited as a guaranty, though requested so to do by plaintiff, and that defendant has appropriated to its own use plaintiff's own money, and asks judgment for $200, with interest and costs. The answer of defendant is a general denial, and as a further answer, and by way of counterclaim, prays judgment against defendant for the sum of $500, the amount of its expenses and loss on profit under the contract by reason of a breach of the said contract on plaintiff's part, in that the plaintiff had failed or refused to take the automobiles purchased by him under said contract. On appeal from the justice of the peace court the cause was heard de novo in the circuit court, where the parties waived a jury and the cause was heard by the court. As to the testimony, it is sufficient to state that the evidence pro and con on the plaintiff's cause of action, as well as on defendant's counterclaim, was conflicting. The evidence, however, was sufficient to have submitted both issues to a jury. A judgment was rendered in favor of the defendant on plaintiff's cause of action, and in favor of plaintiff on defendant's counterclaim, from which judgment the plaintiff appeals.

Appellant's whole appeal is founded upon the argument that defendant submitted its case before the trial court upon the theory that, contemporaneous with or immediately subsequent to the execution of the written contract sued on, the parties changed or modified said contract by an oral agreement, and that as it is admitted that the original contract (in writing) was one required by the statute of frauds (section 2784, R. S. 1909) to be in writing, the original contract could not be modified or varied by a subsequent oral agreement. There can be no question but that that is the law in this state. Rucker v. Harrington, 52 Mo. App. 481; Warren v. Mayer Mfg. Co., 161 Mo. 113, 61 S. W. 644; Ives v. Kimlin, 140 Mo. App. loc. cit. 302, 303, 124 S. W. 23; Arky v. Brockman Comm. Co., 185 Mo. App. 241, 170 S. W. 353. But a reading of the record discloses that the defendant did not plead, nor adduce any testimony tending to prove, any such modification of the original contract, but stood upon a general denial and a counterclaim, in which counterclaim...