Keyes & Watkins Livery Co. v. Freber

102 Mo. App. 315 | Mo. Ct. App. | 1903

BLAND, P. J.

(after stating the facts as above).— 1. For a reversal of the judgment defendant makes two contentions. The first is that the justice acquired no-jurisdiction of the subject-matter of the suit for the reason the contract sued on was not filed with him. The statute in respect to this matter is, in substance, that where the demand is founded upon a written instrument executed by the other party, it shall be filed with the justice before summons is issued. Our Code of Civil Procedure requires a plaintiff or defendant, when his claim or counterclaim is founded on a written instrument executed by the other party, to file the instrument with the pleading. The object of these statutes is to require the party relying upon the written instrument-to establish his demand, to make profert of the written instrument contemporaneous with the filing of the demand. And while, when filed in a justice’s court, it serves as a complaint and is a profert of the instrument, it has never been held that the filing of it is essential to confer jurisdiction on the justice, but that the omission is cured by filing it after the suit has been commenced, or if the cause is appealed by filing it in "the circuit court, or by the defendant entering his general appearance. Boatman v. Curry, 25 Mo. 433; Ins. Co. v. Beckmann, 47 Mo. l. c. 89; Schenck v. Stumpf, 6 Mo. App. 381; Kleiboldt v. Grober, 6 Mo. App. 574; Trust Co. v. Real Est. & Inv. Co., 82 Mo. App. 260.

2. The second contention is that the court erred in rejecting defendant’s evidence in respect to the changed condition of the manure, etc. The manure was the subject-matter of the contract. It is described in the contract as “all manure that may accumulate there- [at plaintiff’s stable] every day.” Nothing is said about any foreign mixture, but it is a matter of common knowledge that manure accumulated in stables does become mixed with the material used to bed the animals and the mixture is universally denominated manure. The word has no technical meaning, nor has it acquired a commercial one differing from its ordinary one. Manure is a common article, well known to all mankind, and hence an ambiguity can not arise from the use of the term. If the manure was valuable to defendant with the mixture as he saw it, but would be of less value or of no value to him if mixed with straw, then as a prudent man he should have provided in the contract that it should not be mixed with straw. He can not appeal to the courts to add a proviso or stipulation to his contract which he had in mind when he entered into it, but failed to have incorporated in it. Parties must be left free to make their own contracts; when they have done so and they are found valid, the courts will enforce them as they find them without adding to or subtracting the're-from a contention of either party not found in the contract as written.

The judgment is affirmed.

Reybum and Goode, JJ., concur.