163 Mo. App. 1 | Mo. Ct. App. | 1912
This was an action on a written order for a monument for the grave of defendant’s deceased wife. At the close of plaintiff’s evidence a demurrer thereto was sustained by the court and judgment entered for the defendant, from which the plaintiff has appealed.
The petition alleged that on September 18, 1908, defendant entered into a written contract and agreement with plaintiff, which is set out in full. The material portions of this contract are as follows: “James England, Neosho, Mo. — Please deliver for me at Rocky Comfort Cemetery, State of Missouri, about the first of February, 1909, or as soon thereafter as convenient the work described in this contract inscribed as follows: ‘Cynthis A. Houser, 1864-1908.’ Leave place at top for this, with such extensions as may be customary, and on delivery of above described work, for value received, I promise to pay James England, or order, $165, with interest at the rate of eight per cent after delivery until paid. .. . No verbal understandings or agreements allowed, and no countermands accepted. . . . Notify when finished before lettering so he may change for same price. (Signed) L. F. Houser, Postoffice Address, Neosho, Mo. Witness: O. A. England.” The petition then alleged that “the plaintiff within the time limited in said contract did deliver at the Rocky Comfort Cemetery a monument of the kind, quality, dimensions, and with the inscriptions thereon, as provided in said contract to be by him performed. But said defendant has failed and refused to pay plaintiff the said sum of one hundred and sixty-five dollars although re
The answer pleads a general denial. Also that plaintiff did not comply with the terms of said instrument in that he did not put up at the grave of the deceased wife of defendant any stone of any character whatever, but that the stone plaintiff put up is at least one hundred yards from the grave of defendant’s deceased wife.
At the close of plaintiff’s evidence in chief, the court at the request of the defendant gave the following peremptory instruction: ‘ “ Comes now defendant at the close of all the evidence on the part of plaintiff, and asks the court to instruct the jury that under the pleadings and evidence they will return a verdict in favor of defendant, for the reason that this action is based on a written contract and plaintiff’s evidence shows that said written contract had been changed and superseded by a valid and binding oral contract before this suit was instituted.”
It will be seen that the contract in question was a written order and promise to pay for a monument for the grave of defendant’s deceased wife, to be delivered át Eocky Comfort Cemetery, and to be the size specified in the order and finished according to said order, but that before delivery defendant was to be notified so he might change the lettering thereon, if he desired, without extra charge. The monument was to be delivered at the cemetery “about the first day of February, 1909, or as soon thereafter as convenient. ’ ’
This contract was made at defendant’s home. As soon as the order reached plaintiff’s shop at Neosho, plaintiff acknowledged receipt of it, and wrote defendant that it might not be possible to get the granite top-piece within the time mentioned in the contract but that he would do the best he could. Plaintiff made
After this, plaintiff received several letters from the defendant, and during the wheat harvest in the following June, plaintiff called on defendant and a conversation was had between them as to which plaintiff testified as follows: “I went and talked with defendant and he said at that time the only objection he had was that the monument was delivered a little before he was ready to pick it, and I said, ‘Mr. Houser, you should have told me that before and. we could have arranged it. "We have no desire to set the monument up before you are ready, but the contract called for it to be set up and I didn’t know when you were ready.’ We talked a good while. I told him I would
Under the evidence it is apparent that the defendant is liable to the plaintiff under the original written contract provided plaintiff’s evidence shows a compliance with its terms, unless a subsequent oral contract between them is disclosed by plaintiff’s evidence which abrogated and superseded the written contract so as to release and discharge the defendant. It requires no citation of authorities to show
The real difficulty in this case is as to whether the written contract between the parties was rescinded or cancelled by what subsequently took place in the conversation between the parties during defendant’s wheat harvest in June. The decision of the case turns, on whether a new contract claimed to have been made at that time was actually consummated. A careful examination of what was said by the parties at this time leaves no doubt that the parties instead of abrogating the prior written contract for the monument fully recognized its binding force. The circumstances under which they met were that the plaintiff claimed that he had fully executed the contract so far as he was able and had in fact delivered the monument at the cemetery and he sought out the defendant in order to collect the amount claimed to be due and in the conference asserted that he had fully complied with his contract, or, if he had failed to do so, it was by reason of the fault of the defendant, and that he was then willing to make all proper amends. The position of the defendant was that plaintiff had not complied with his written contract in a manner satisfactory to him,, but that if he would do so, defendant was ready to pay the stipulated price for the monument. Plaintiff’s testimony was that one difference between them
Under the evidence the court should have overruled the demurrer. If, upon retrial of this case, the plaintiff shall be able to show that he complied with the terms of his written contract or that its performance has been waived by the defendant or such performance has been prevented by him, plaintiff will have made a prima facie case. It is ordered that the judgment be reversed and the cause remanded.