178 Mo. App. 70 | Mo. Ct. App. | 1914
The case was reversed on the former appeal because the trial court wrongfully held that the evidence showed that the written contract sued on had been so changed as to make a new oral contract superseding the written one. This court then examined the evidence and held that it did not show any such new contract. . It was then pointed out that no change of the written contract or substitution of a new one was pleaded and if, on a new trial, defendant wanted to raise this defense he should do so in his answer, citing Sutter v. Raeder, 1491 Mo. 297, 309, (50 S. W. 813), where It is held that, where no modification or rescission of a
The plaintiff (first moved to strike out all this answer except the first paragraph on the ground that it states no defense and pleads an oral agreement in contravention of a written contract. This being overruled and excepted to, the plaintiff filed a general denial for reply. The defendant testified, over plaintiff’s objection on the same ground, that plaintiff’s agent came to his house in the country shortly after his wife died and solicited an order for a tombstone; that he told the agent he was not prepared and wanted to consult his children about it; that he was not able to buy then but as soon as he was- able he would buy; (quoting) “that he (the agent) got his plat book and began to show me and we ran over the monuments. He asked me if I did not think that would suit me and I told him yes. I depended on what it looked like when I saw it and he kept on talking and he wanted me to go into a contract and I told him that I did not want to. I wanted to see the monument before I went into a contract. He insisted on my calling the children and I called what were there, my daughter and daughter-in-law. They came out and looked at the design and they thought it would probably look all right so he wrote out what he called a contract and handed it to me and I read it and refused to sign it. I said that would bind me up and I am not ready to buy and don’t want to
The agent testified that the only part of the contract inserted after being signed was the date of the wife’s birth and death, which he wrote in on this occasion and in defendant’s house and by the authority and direction of the defendant; that the duplicate he gave him was an exact copy of the contract. ■
It is evident that the contract was made by filling out a blank form and that only the description of the monument and the inscription thereon, the dates, place and time of delivery, and the amount, to be paid were written in pencil. The evidence further shows that defendant was fifty-six years old, a well to do farmer,
At the close of the evidence, plaintiff asked a peremptory instruction for judgment in his favor. He also asked and the court refused an instruction to the effect that a party is bound to know the contents of a writing signed by him and cannot be heard to say that a different understanding was had other than the plain language of the writing; that a failure to read or know all its terms does not affect his liability; that all conditions and understandings of the parties had or discussed at or prior to signing the contract are conclusively presumed to be merged in the writing and cannot be shown to annul its terms. The plaintiff also, asked this instruction: “The court instructs the jury that it is admitted that the defendant signed the contract sued on, and in this connection you are instructed that if you find and believe from the evidence that the plaintiff did manufacture and letter said monument according to the terms of the contract read in evidence, and delivered said monument at the cemetery at Rocky Comfort, at the time said monument was contracted to be delivered, or within a reasonable time thereafter» then in that event the plaintiff is entitled to recover for same the contract price, together with eight per cent interest from the time of said delivery, and your verdict should be for the plaintiff. ’ ’ The court refused it as asked but modified and gave it with this addition: “Unless you further find that defendant was induced to sign contract by false and fraudulent statements-made by plaintiff’s agent, if you find such to have been made at the time of signing of said contract. ’ ’ These proceedings are mentioned more at length because of defendant’s insistence that plaintiff by Ills conduct at the trial waived the point we are now considering — a question to be noted later.
It will be noted that the defendant admits that he read and fully understood the instrument he was sign
We regret that learned counsel for defendant has not briefed this point, though it is well briefed by the appellant. Courts are and ought to be disposed to relieve parties who are defrauded or even over-reached in making contracts. The law abhors unfair dealing, and it is a favorite maxim that fraud vitiates all contracts. But there are limits to this doctrine and its application to particular eases beyond which courts cannot go. In Manufacturing Co. v. Carle, 116 Mo. App. 581, 591, (92 S. W. 748), the court said: “The exceptional instances in which a party escapes the consequences of his written obligation, are those in which, by some fraudulent contrivance, he is misled by the other party regarding the contents of the instrument, or where he was enfeebled by sickness and past understanding what he signed, or ignorant and unable to read the writing, or where some similar condition prevailed.” Speaking of the evidence in that case, the court further said:’ “But a study of Mrs. Carle’s own testimony has convinced us that there is no substantial evidence of any fraud practiced by Dean to induce her to sign the order. He did not deceive her about its contents and she nowhere says that he did. The contract
In Crim v. Crim, 162 Mo. 544 (63 S. W. 489), ■Judge Marshall said: “The written contract is conclusively presumed to merge all prior negotiations and to express the final agreement of the parties. To permit a party when sued upon a written contract, to admit that he signed it, but to deny that it expressed the ^agreement he made, or to allow him to admit that he •signed it, but did not read it or know its stipulations, would absolutely destiny the value of all contracts and negotiable instruments.” [First National Bank v. Wells, 98 Mo. App. 573 (73 S. W. 293); Bank v. Birsch, 154 Mo. App. 631, 636 (136 S. W. 28:).] In ‘‘Tracy v. Union Iron-Works Co., 104 Mo. 193, 199, (16 S. W. 203), the court said: “So, in private adjustments of reciprocal rights, it is wisely considered that, When parties have deliberately put their mutual agreements into the form of a completed written contract, 'that expression of their intention should be accepted •as a finality, in which is merged all prior negotiations within the scope of the writing. ’ ’ In United Breeders Co. v. Wright, 134 Mo. App. 717, 721 (115 S. W. 470), the court said: “The general rule is that parties to such contracts are not permitted to go behind the writing. Everything pertaining to the subject-matter that
In considering this question the St. Louis Court of Appeals in Bradford v. Wright, 145 Mo. App. 623. 630 (123 S. W. 108), stated: “It is said the law will presume that a person will take care of himself. He cannot go abroad without thought, care or judgment relying on the law to guide and protect him in his dealing with his fellow man. The law will not relieve him because he has been credulous nor will the law care for one who will not care for himself. ’ ’ In Zeller v. Ranson, 140 Mo. App. 220 (123 S. W. 1016), the defense was that when the written order was signed, the agent taking the same promised and agreed that the goods ordered were not to be shipped until another member of the firm, not then present, consented; that this other member refused to consent and notice thereof was given to plaintiff. The written order was absolute and complete on its face and states, as does this one, that all the terms and conditions appear therein. The court held that this was no defense and that defendant’s reliance on the promise and agreement of the agent, that the order would not be binding without and unless consent of the other member of the firm was obtained, is-
In Copying Co. v. Muleski, 138 Mo. App. 419, 422, 423 (122 S. W. 384), the court said: “Defendant’s answer was a general denial, though we gather from the record, brief and argument in this court that his defense was that at the time he signed the written contract it was understood and verbally agreed by him and plaintiff’s agent that that portion of the contract requiring defendant to purchase the stamps of plaintiff and give them to customers was to be erased and was not to be a part of the proposition to be sent to plaintiff at the home office.” It appears the defendant offered an amended answer setting up this defense, which was stricken out. As to this the court said:
*85 “But however defendant may have been misled, the fact remains that the defense thus attempted is not allowed by the law. A contemporaneous agreement cannot be allowed to affect the writing. No fraud is charged and no reason suggested why the writing did not represent the agreement. It was defendant’s duty to see that it did. [Johnson v. Insurance Co., 93 Mo. App. 588.] ” As showing what view the court took of this defense in the case there cited, Johnson v. Insurance Co., the court said: “If a party is induced to sign a contract by fraud, he can avoid it for that reason. But it is clear that merely falsely representing to a man in possession of his faculties and able to read, that a writing embodies their verbal understanding is not the fraud the law means. If it was, then no written contract could stand against the assault of either party. He would only need to say that it did not contain the agreement; and not containing the agreement, it is fraudulent; and being fraudulent, it can not be enforced. Thus a writing would be mere waste material and all stability of contract be at an end.” [See also Magee v. Verity, 97 Mo. App. 486 (71 S. W. 472).] Bass v. Sanborn, 119 Mo. App. 103, 107 (95 S. W. 955), is a suit on a note and the court there held: “Want of consideration, partial or total, may be shown. (Sec. 645, R. S. 1899). But it seems well settled that it is not permissible for the maker of a note ■ to prove that though he executed the paper, it was, at the time agreed that he need not pay it. [Jones v. Shaw, 67 Mo. 667; Smith v. Thomas, 29 Mo. 307; Barnard State Bank v. Fesler, 89 Mo. App. 217.] ’ ’
Barnard State Bank v. Fesler, 89 Mo. App. 217, 226, holds that where plaintiff had executed three notes, he would not be allowed to prove that the payee had agreed at the time that if one of these should be paid, the others would not be enforced against the maker. [See also Wislizenus v. O’Fallon, 91 Mo. 184, (3 S. W. 837).] In Jones v. Shaw, 67 Mo. 667, an answer set
We must, therefore, rule that defendant has not shown any fraud in a legal sense — nothing that the court can recognize as a defense to this written contract. The golden rule is the best standard of fair dealing yet devised and its full observance is devoutly to be desired. No human court, however, is endowed
After having objected in vain to defendant being allowed to make a certain defense, plaintiff bas a right to accept tbe court’s decision as to tbe law and by cross-examination or with bis own evidence do his best to weaken or overcome such defense. And being denied instructions on what be insists is the law on tbe facts proved, and when instructions given for bis adversary, over bis objection, adopt a different theory, be may ask instructions on such wrong theory, but more favorable to him, without it being a waiver. [Kenefick v. Fire Insurance Co., 205 Mo. 294, 308, (103 S. W. 967), and cases cited; Reynolds v. Publishers: George Knapp & Co., 155 Mo. App. 612, 621, (135 S. W. 103).]
It results that, as was done in Zeller v. Ranson, 140 Mo. App. 220, (123 S. W. 1016), tbe judgment of