166 Mo. App. 51 | Mo. Ct. App. | 1912
(after stating the facts). — The principal part of this answering brief of respondents’ counsel is devoted to an attack upon the appeal and abstract. It is insisted in this part of the brief that we should dismiss or affirm for failure of appellant to file the transcript of the cause at the first term following the appeal, that transcript not having been filed until October 3rd, that being the first day of the October, 1910, term of our court. The appeal having been taken on the 4th of April, 1910, during the March term of the circuit court, and more than sixty days prior to our October term, the transcript was due to be filed under the provisions of sections 2047 and 2048, Revised Statutes 1909, to the October, 1910, term of our court, and should have been filed at least fifteen days prior to the beginning of that term. As will be seen by the statement which we have made of the facts attendant upon that, it was not filed fifteen, days before that term but filed on the first day of the term. It is provided by section 2047, of the Revised
Turning to the merits of the case, the principal grounds stated in the motion for new trial and now assigned here are to the error of the court in not sustaining plaintiff’s demurrer or, more properly, in refusing to give plaintiff’s peremptory instruction which we have set out. Error is also assigned to the admission and exclusion of testimony. We hold that these assignments are well made.
No parol evidence should have been admitted to explain or vary the terms of the warranty and of the contract accompanying it. Evidence of Mr. Brant in
It is said, however, that all of the letters between plaintiff’s agent and defendants which’ were introduced in evidence and the notes which were offered and introduced in evidence, as well as instructions which were asked on the part of defendants and given by the court, are not before us in the abstract and that therefore we cannot pass upon this phase of the case. Referring to the letters that were said to have been offered and are not in the abstract, it is sufficient to say of them that no matter what may have been in them, it affirmatively appears that this agent with whom this correspondence was carried on had no authority whatever from the principals to make any representations or waiver with respect to this machinery, so that what he said or wrote or what these defendants wrote or telegraphed to him was immaterial to the consideration of the case. The letters between plaintiff and these defendants are in evidence, and as before remarked, on the authority of Nichols-Shepherd Co. v. Rhoadman, supra, inasmuch as these letters distinctly carry out the idea of acceptance of the property by defendants and are negotiations for an extension of time of the payment, they estop defendants from now claiming a failure of consideration.
We are unable to say what instructions were asked and given or refused on the part of defendants, as neither party has brought them before us. We assume that if they are material to the decision of this case or would throw a different light upon it, that
On consideration of the whole case and on the evidence that was in the case at this trial and as presented by the abstract, the instruction asked by appellant, plaintiff below, should have been given. That being given, no other instructions were necessary. The trial should have been conducted with reference to the admission and exclusion of evidence on the lines herein indicated,' that is to say, parol evidence cannot be introduced in the absence of charges of fraud, misrepresentation or mistake to contradict, vary or enlarge a written contract. The judgment of the circuit court is reversed and the cause remanded.