Zellar v. Ranson

• Decision Date: 06 December 1909
• Citation: 123 S.W. 1016,140 Mo.App. 220
• Parties: NICHOLAS ZELLAR et al., Appellants, v. MAGGIE RANSON et al., Respondents
• Court: Missouri Court of Appeals

123 S.W. 1016

140 Mo.App. 220

NICHOLAS ZELLAR et al., Appellants, v. MAGGIE RANSON et al., Respondents

Court of Appeals of Missouri, Springfield

December 6, 1909

Appeal from Jasper Circuit Court.--Hon. Haywood Scott, Judge.

REVERSED AND REMANDED (with directions).

Reversed and remanded.

George W. Crowder for appellants.

(1) Under the terms and provisions of the contract the court erred in admitting the parol testimony of the defendant Maggie Ranson. Loan & Trust Co. v. Workman, 71 Mo.App. 278; Wood v. Murphy, 47 Mo.App. 539; Banks v. Richart, 101 Mo.App. 242; Martin v Witty, 104 Mo.App. 268; 1 Beach on Modern Law of Contracts, sec. 784; Plano Mfg. Co. v. Eish (Iowa), 97 N.W. 1106; Ellis v. Brewing Co., 207 Ill. 291; Price v. Marthon (Mich.), 81 N.W. 551; Thomas v Iron Co., 208 Pa. 478. (2) Where one is sued on a written contract he cannot show that a verbal stipulation, made prior to the execution of the writing, was engrafted upon the instrument. International Text Book Co. v. Lewis, 130 Mo.App. 158. (3) No fraud having been pleaded by defendants in their answer, and the contract being clear and unambiguous, the defendants are bound by its express terms. Leicher v. Kenny, 98 Mo.App. 394; Manufacturing & Importing Co. v. Carle, 116 Mo.App. 581. (4) Plaintiffs' declaration of law, in the nature of directing a finding and judgment in plaintiffs' favor, and directing the amount to which the plaintiffs were entitled, should have been given. Taylor v. Felder (Ga.), 59 S.E. 844. (5) In the other suit, plaintiffs took a voluntary nonsuit; this was not an adjudication. Therefore, defendants' plea of res adjudicata must fail. Weithaupt v. City of St. Louis, 158 Mo. 655; National Waterworks Co. v. School Dist. of Kansas City, 23 Mo.App. 227; Ellington v. Crockett, 13 Mo. 72; Taylor v. Larkin, 12 Mo. 193.

T. C. Tadlock for respondents.

NIXON, P. J. Cox, J., concurs; Gray, J., not sitting.

OPINION

NIXON, P. J.

This case was first tried in the Jasper county circuit court. An appeal was taken to the Kansas City Court of Appeals, and from there the case was certified to this court on the 4th day of October, 1909.

In the Kansas City Court of Appeals, a motion was filed for leave to amend appellants' abstract of record, statement and brief, the grounds alleged being that the attorney for appellants sent the abstract of record, statement and brief to appellants at Iowa City, Iowa, inserting appellants' bill of exceptions, gave directions for printing, and that the printer who undertook the work, through mistake, wholly omitted and left out of the abstract of the record the bill of exceptions, of which mistake appellants had no knowledge until March 15, 1909,--then too late to comply with rule 15 of the Kansas City Court of Appeals by serving respondents with the abstract and brief twenty days before the date on which the case was docketed for hearing.

The respondents, in answer to this motion for leave to amend, stated that the appellants were guilty of gross negligence in perfecting the appeal.

It does not appear what action, if any, the Kansas City Court of Appeals took on this motion.

Thereafter, this case was set for hearing in this court on November 4, 1909. On October 4, 1909, the appellants' amended abstract and brief were filed in this court, and on November 4, 1909, the cause was submitted on the brief of the appellants. The respondents made no further appearance.

From the fact that the certification of the case to the Springfield Court of Appeals necessitated a new setting of the same, together with the other facts, we conclude that justice requires--in the absence of any further objection by the respondents--that the amended abstract and brief of appellants were filed in due time in this court, and the motion to strike out is accordingly overruled.

STATEMENT.--This case is based on a contract in writing signed by the defendants, dated March 15, 1907, whereby the defendants purchased of the plaintiffs a quantity of jewelry valued at $ 120. The petition, filed January 4, 1908, recites that Nicholas Zellar, S. G. Duley and Okle Zellar were partners, doing business under the name of the Rhode Island Manufacturing Company, and that they were manufacturers of and dealers in jewelry with offices in the city of Iowa City, Iowa, and in other places; that defendants, Maggie Ranson and Cleave Ranson, were partners, engaged in the general merchandise business under the firm name of M. Ranson & Son, at Neck City, in Jasper county, Missouri. That on the 15th day of March, 1907, the defendants ordered of plaintiffs, in writing, over the signature of M. Ranson & Son, signed by the defendant, Maggie Ranson, a bill of merchandise consisting of specified articles of jewelry, through J. B. Weil, plaintiffs' traveling salesman, and agreed to pay for said goods the sum of $ 120 in future acceptances, each one month after the other; that the order was received by the plaintiffs in the due course of mail on the 18th day of March, 1907, and approved by them on the same day; that relying upon it, the plaintiffs delivered at their express office in Iowa City the goods sold consigned to the defendants. That the defendants refused to give the acceptances as agreed and have ever since refused to do so. That the plaintiffs in every way complied with the conditions of the contract, and that there remained due the sum of $ 120 for such jewelry. The factory order, appended to the petition as an exhibit, and on which the goods were purchased, contains this provision: "The undersigned acknowledges that the salesman is a mere soliciting agent and that all terms, conditions and agreements between himself and the salesman appear hereon." This order was signed,--"By, Mrs. Maggie Ranson, buyer." It contained also this provision: "No outside or verbal agreements shall be binding on either party." The order shows that the goods were directed to be shipped to M. Ranson & Son and contains an itemized statement of the goods ordered of plaintiffs.

The defendants filed an answer consisting of a general denial and the special defense that at the time the order was taken, it was agreed between Maggie Ranson and the plaintiffs' soliciting agent, J. B. Weil, that the order was taken for the convenience of the said agent, and was by him to be held for the consent and approval of Cleave Ranson, a copartner, and the business manager of the firm of M. Ranson & Son, who, at the time, was out of the city, and the goods were not to be shipped until thirty days after plaintiffs had been notified by letter that the said Cleave Ranson had ratified said order and consented to the purchase of said merchandise; that on the same day that the order was given, the said Cleave Ranson returned home and refused to ratify and approve said order, and that thereupon, in pursuance of such agreement, Maggie Ranson addressed and posted a letter to the plaintiffs at Chicago, Illinois, notifying the plaintiffs of the refusal of Cleave Ranson to ratify and approve the order and directing them to cancel the order. The defendants also stated in their answer that prior to this time, the plaintiffs instituted a suit in the Jasper county circuit court against the same defendants on the same cause of action set up in the petition herein; that the defendants in their answer to said cause of action, set up the same facts as set up in this answer; that the issues were joined thereon and the case was submitted to the court who found the issues for the defendants, and that such judgment was a final judgment on all the issues in this case.

To this answer the plaintiffs filed a replication, being a general denial of all new matter set up in the answer.

The court, sitting as a jury, found the issues for the defendants. Plaintiffs filed the usual motions for a new trial and in arrest, and these being overruled, in due course perfected their appeal.

At the trial, the factory order was offered in evidence which substantiated the material allegations in plaintiffs' petition.

The deposition of S. G. Duley was produced by the plaintiffs which is substantially as follows: He testified that he was the manager of the Rhode Island Manufacturing Company, a partnership composed of Nicholas Zellar, Okle Zellar and himself; that they are wholesalers of jewelry and novelties, and do business principally through solicitors or agents; that he had general charge of the business, directing the solicitors and accepting or rejecting all orders sent in by the solicitors; that J. B. Weil was a soliciting agent for the company at that time, engaged in soliciting orders in March, 1907, on forms provided by the company, and that he had no authority in any way as their agent to bind the company except on the printed forms for orders which each customer signed. That the plaintiffs had dealings with the defendants, and that on the 18th day of March, 1907, he received an order through the mail from J. B. Weil, bearing the signature,--M. Ranson & Son, by Mrs. Maggie Ranson, buyer,--on one of the regular order forms known as Form B10, dated March 15, 1907, calling for goods to the amount of $ 120. The order was produced and identified by the witness and filed as "Exhibit A." He stated that on receiving the order, he looked into the standing of the defendants, found them satisfactory, accepted the order, and directed that the goods listed and called for in the order be prepared and shipped to the address named in the order; that these directions were given to Frank Zellar who was in charge of the stock department of the plaintiffs. That he also mailed a letter to the defendants advising them of the shipment of the goods on the 18th day of March, 1907. That on March 21st, he dictated and mailed another letter to the...