Welch v. Mischke

• Decision Date: 03 April 1911
• Citation: 154 Mo. App. 728,136 S.W. 36
• Parties: WELCH v. MISCHKE.
• Court: Missouri Court of Appeals

136 S.W. 36

154 Mo. App. 728

WELCH v. MISCHKE.

Springfield Court of Appeals. Missouri.

April 3, 1911.

1. SALES (§ 89)—MODIFICATION OF CONTRACT —CONSIDERATION—SUFFICIENCY—CHANGE OF OBLIGATION.

Defendant purchased a stave saw from plaintiff, giving his notes for the price, and plaintiff agreed to accept 500,000 staves manufactured by defendant in payment of the notes at $12.50 per thousand, afterwards increased to $14 per thousand, or at the rate of $1 withheld on every 1,000 staves furnished. Afterwards, when staves were selling at from $24 to $26 per thousand, the parties agreed that defendant should get out the 500,000 staves for plaintiff and surrender the machinery when plaintiff should surrender the notes. Held, that there was a sufficient consideration for the second contract, it being different from the first, in that defendant was required thereby to surrender the machinery and plaintiff to take it back again.

2. CONTRACTS (§ 237)—CONSIDERATION—SUBSTITUTED CONTRACT.

The substitution of a new contract for the old one is of itself sufficient consideration for the new contract.

3. CONTRACTS (§ 237)—CONSIDERATION—MODIFIED CONTRACTS.

There is a sufficient consideration to support a modification of a contract where the parties act upon the modified contract, thereby abandoning the original contract.

4. BILLS AND NOTES (§ 537)—ACTION—JURY QUESTION—DISCHARGE OF OBLIGATION.

In an action on a note given for sawmill machinery, wherein it appeared that the parties agreed that the notes should be surrendered if defendant manufactured 500,000 staves for plaintiff, evidence held to make it a jury question whether the note was discharged in that manner.

5. BILLS AND NOTES (§ 539)—ACTION—TRIAL —INCONSISTENT VERDICT.

Plaintiff sold defendant a stave saw, receiving the note sued on for the price, and agreeing to accept 500,000 staves manufactured by defendant in payment therefor, and defendant was to furnish 4,500 inches of clear timber for every 1,000 staves; plaintiff to be allowed for the excess if the staves manufactured ran wider, and the evidence tended to show that the average width of the staves was over 4½ inches, so that they scaled 1,000 to every 900 made, and that only the equivalent of 490,590 staves of an average width of 4½ inches were furnished. Defendant counterclaimed for the value of the staves furnished of more than an average width of 4½ inches. The court instructed that, to entitle defendant to make a claim because the staves averaged more than 4½ inches, he should have notified plaintiff within a reasonable time after delivery and demanded payment for the excess, and in absence thereof the jury should find for plaintiff on the counterclaim, as they should also do if the staves did not average more than 4½ inches in width, and also instructed that if defendant delivered 500,000 staves of the average width of 4½ inches to plaintiff the jury should find for defendant as to the notes. The verdict recited a finding on the counterclaim for plaintiff "that he does not owe the defendant anything on account of the staves averaging over 4½ inches," and also found "the issues for the defendant on the note that plaintiff agreed to take the machinery in payment of same if defendant delivered to him 500,000 staves under the contract, and that defendant complied with said contract," and thereby satisfied the note. Held, that the verdicts were not conflicting when construed in view of the evidence and of the instructions, which referred only to the counterclaim.

6. APPEAL AND ERROR (§ 878)—REVIEW—QUESTIONS CONSIDERED—AFFECTING PARTY NOT APPEALING.

Any error in finding against defendant on his counterclaim is not reviewable on plaintiff's appeal; defendant not appealing.

7. APPEAL AND ERROR (§ 1032)—HARMLESS ERROR—INCONSISTENT FINDINGS—PREJUDICIAL EFFECT.

Appellant must show that inconsistent findings constituted material error in order to work a reversal.

8. BILLS AND NOTES (§ 489)—ACTION—PROOF —CONFORMITY TO PLEADINGS.

In an action on a note which purported to be discharged by furnishing plaintiff a certain number of No. 1 staves, the modified contract acted upon by the parties, providing that two No. 2 staves would be accepted for one No. 1 stave, the pleadings alleged that defendant agreed to and did furnish a certain number of staves under their contract. Held, that an objection that the pleadings did not authorize the admission of evidence that, under the contract, two No. 2 staves should be accepted for one No. 1 stave was untenable.

9. CONTRACTS (§ 170)—CONSTRUCTION—CONSTRUCTION BY PARTIES.

The court will usually accept a construction given a contract by the parties thereto in enforcing it.

Appeal from Circuit Court, Crawford County; L. B. Woodside, Judge.

Action by Robert Welch against Emil Mischke, in which defendant entered a counterclaim. From a judgment for defendant in the principal suit and for plaintiff on the counterclaim, plaintiff appeals. Affirmed.

R. P. Spencer and A. L. Reeves, for appellant. Harry Clymer, for respondent.

NIXON, P. J.

This was a suit on a promissory note for the principal sum of $549.32, executed by defendant (Mischke) to plaintiff (Welch) for the purchase price of a stave saw and appurtenances; the plaintiff retaining a vendor's lien on said machinery in the language usually employed in the creation of such liens. Plaintiff prayed for judgment on the note in the sum of $724.40 (principal and interest), for the enforcement of the lien, and for the sale of the property to satisfy said judgment and costs. Defendant for answer admitted the execution of the note, but set up as an affirmative defense that according to the terms of a new contract between plaintiff and defendant, made after the execution of the note, defendant was relieved from the payment of the note by the manufacture and sale to plaintiff of 500,000 white oak staves, including those already made by defendant for plaintiff after the execution of the note, but before the making of the second contract, and by the return of the machinery to the plaintiff. Defendant pleaded an offer to surrender the machinery, and a demand for the note, alleging his compliance with the terms of said second contract. Defendant also pleaded a counterclaim in the sum of $343 as a balance due him on account of staves sold plaintiff, alleging that he had sold plaintiff 514,500 staves and had been paid for but 490,000. Plaintiff's reply was a general denial and a plea of lack of consideration to support the alleged second contract. The lien feature was eliminated from the case, and the cause was tried as a suit on a promissory note, with defendant urging his affirmative defense. The jury found for the defendant on the note and for plaintiff on the counterclaim. Plaintiff has appealed.

The evidence shows that on April 15, 1902, the defendant executed his promissory note for $549.32 as the purchase price of a stave saw and appurtenances; the plaintiff retaining a vendor's lien on said machinery. Before the execution of this note, however, plaintiff wrote a letter to defendant, stating that plaintiff would sell the machinery to defendant, and that he (plaintiff) would "contract to take 500,000 No. 1 white oak staves, to be thirteen-sixteenths of an inch thick when green, so they will measure three-fourths of an inch when dry, 34 inches long, and to average 4½ inches wide after all defects are measured out, so they will run this width after being smooth jointed at the finishing plant, and pay you $12.50 per 1,000 on cars at Sligo, or any station near there on the Frisco line. If staves do not run this wide, you are to put in enough extra to make it up; if they run wider we to allow for them. In other words, you are to furnish us 4,500 inches of clear timber for every 1,000 staves, no staves to be put in less than three inches wide. * * * Will agree to let you pay for machinery in staves, you leaving back $1 on every 1,000 made, you to agree to make not less than 30,000 per month on an average after getting started. Will advance you on each month's cut $7 per 1,000. * * * On each car loaded out will advance you $3 more per 1,000, and balance as soon as car is unloaded and counted out." After plaintiff's signature defendant wrote, "I accept the above proposition."

By letter of October 3, 1903, from plaintiff to defendant, it appears that plaintiff had allowed defendant $13 per 1,000, instead of $12.50, for all staves shipped up to that time, and in this letter plaintiff agreed to increase it to $14 per 1,000. By letter dated September 12, 1904, from plaintiff to defendant, it appears that defendant had been to St. Louis to see plaintiff, and that a new contract had there been made. The reference to such contract in this letter is as follows: "In regard to making staves, when you were here I told you if you would make 500,000, I would deliver the note back to you and take the machinery off your hands, which I consider very fair and which I stand ready to do when you cut this many staves, and in case you quit cutting the staves, I shall expect you to pay the note with interest and keep the machinery. If you do this you are at liberty to cut staves for any one you want to. It's up to you what is best to do."

Defendant testified: "Q. Mr. Mischke, when you were in St. Louis, you say that you had an agreement with Mr. Welch that if you would make 500,000 staves the note would be surrendered to you. Now I will ask you if that agreement was to include the staves already made? A. That is what I understood."

By letter dated August 27, 1904, from plaintiff to defendant, the following appears: "When you were here in St. Louis I agreed to take the machinery back, provided you could cut 500,000 No. 1 staves, and since you were here you have made very little effort to get out the staves, and I will say to you that unless you cut the 500,000 staves, I shall expect you to pay for the machinery. If you do not cut staves faster, I...