Yost v. Silvers

• Decision Date: 25 May 1909
• Citation: 138 Mo. App. 524,119 S.W. 971
• Parties: YOST et al. v. SILVERS.
• Court: Missouri Court of Appeals

119 S.W. 971

138 Mo. App. 524

YOST et al. v. SILVERS.

St. Louis Court of Appeals. Missouri.

May 25, 1909.

Rehearing Denied June 8, 1909.

1. APPEAL AND ERROR (§ 361)—AFFIDAVIT FOR APPEAL—SUFFICIENCY.

An affidavit for appeal, which avers that the appeal by defendant is taken "because defendant is aggrieved" by the judgment, is sufficient within the statute requiring the affidavit to aver that affiant believes that the party appealing is aggrieved.

2. APPEAL AND ERROR (§ 361)—AFFIDAVIT BY ATTORNEY—SUFFICIENCY.

An affidavit for appeal, made by the attorney of a party appealing, which describes affiant as attorney, is sufficient without describing him as agent; the attorney acting as agent for such party.

3. CONTRACTS (§ 353)—ACTIONS—EVIDENCE— INSTRUCTIONS.

Where, in an action on a contract, a contract was given in evidence, instructions merely identifying such contract with the one sued on were not improper.

4. CONTRACTS (§ 176)—CONSTRUCTION—QUESTION FOR JURY.

While the court as a general rule must interpret contracts, yet, where a contract is ambiguous, the court must submit to the jury as a question of fact which of two or more meanings is to be given to it.

5. CONTRACTS (§ 176)—CONSTRUCTION—QUESTION FOR JURY.

A contract made October 7th, for the sale and purchase of lumber, coal, etc., on hand in the seller's lumber yard, which provides that on November 15th the parties are to start an invoice of the stock, which shall be done by two competent men, who shall be governed by "Atlee's Southern Pine Lumber Company, and Radford's price lists," etc., is ambiguous as to whether the lists showing prices as of November 15th shall control, or whether the lists as of October 7th shall govern, and the jury must determine the question by giving effect to the construction the parties placed on their own acts and by the circumstances surrounding the execution of the contract.

6. APPEAL AND ERROR (§ 1001)—VERDICT— CONCLUSIVENESS.

The verdict of the jury finding the construction of an ambiguous contract supported by evidence will not be disturbed on appeal.

Appeal from Circuit Court, Scotland County; Chas. D. Stewart, Judge.

Action by B. B. Yost and another against Seth S. Silvers. From a judgment for plaintiffs, defendant appeals. Affirmed.

On the 7th of October, 1907, plaintiffs and defendant entered into a contract, by the terms of which, in consideration of $4,000, to him to be paid, defendant agreed to sell to plaintiffs certain town lots in the town of South Gorin, Scotland county, this state, together with certain described fixtures and personal property then on the lots, as also his business as dealer in lumber, etc.; it being further agreed that defendant was to invoice to the plaintiffs his stock of lumber, coal, cement, paint, etc., on hand in the lumber yard defendant was conducting at South Gorin, and that on November 15, 1907, the parties to the contract "are to start invoice of said stock, which shall be done by two competent men, one picked by each party. Those doing the invoicing are to be governed by Atlee's Southern Pine Lumber Company, and Radford's price lists and their grading according to associations to which they belong; cement, lime, plaster, plaster of Paris, paint, roofing, building paper, shingles, posts, and poles, etc., according to respective wholesale lists on same, which are to include freight to Gorin, if not so specific, on said lists. Any coal on hand to be invoiced as per bills for same. Anything in stock not covered by above-mentioned price lists is to be invoiced at present wholesale prices f. o. b. Gorin." Under the agreement plaintiffs were to pay and did pay $1,000 at the time of entering into the agreement; it being stipulated by the parties that, on a failure to comply with the terms of the contract by plaintiffs, they should forfeit this $1,000, the first payment on the contract, or that, on a failure on the part of the defendant, he should return the "$1,000 and pay such damages as the parties of the second part may incur." The remainder of the $4,000 was to be paid as soon as the invoice was completed and deed delivered, which, it was stipulated, should be on or before November 22, 1907. The invoicing was to be done by two competent men, one picked by each party. There are other clauses in the contract, but the controversy arises under those parts of the contract quoted above. The invoicing, as it is called, and as the contract was understood by the parties, meant not merely the listing of the articles bargained, but fixing prices and values thereon. More accurately, it meant the appraisement and classification, which, as to the lumber, as before stated, was to be governed as to price and grading, by "Atlee's Southern Pine Lumber Company, and Radford's price lists and their grading according to associations to which they belong." Each party selected an appraiser, as agreed upon, and these appraisers met at Gorin on the 15th of November, ready and prepared to start in with the invoicing,...