14 Mo. App. 65 | Mo. Ct. App. | 1883
delivered the opinion of the court.
The plaintiffs, as purchasers from the defendants of a lot of walnut logs which were lying in Reelfoot Creek, in the State of Tennessee, sue for breaches of the contract and guaranty embodied in the sale. The court sustained a demurrer to the plaintiffs’ evidence.
The testimony tended to show that Meyer, a member of the defendant firm, proposed to Liebke, one of the plaintiff partners, in the city of St. Louis, to sell to the plaiutiffs a lot of five hundred and twenty walnut logs, then lying in Keelfoot Creek and its tributaries, and at the same time handed to Liebke a scale bill, showing separately the length and diameter,in feet and inches, of every log. Liebke and Meyer went over the list together and calculated, by rules familiar to lumber dealers, the quantity of lumber that could be sawed out from each log, and the average number of feet per log that the whole lot of five hundred and twenty would yield. This average was three hundred and eighty-two feet. Liebke kept the paper for several days, giving it a careful examination, and, “ on the strength of that scale bill,” as he expresses it, agreed to pay $2,750 for the entire lot. The
St. Louis, October, 15, 1878.
Messrs. Liebke & Schrage,
Bought of Methudy and Meyer,
Lumber Commission Merchants,
No. 202 South Fourth Street.
520 Walnut Logs ......$2,750 00
50 Poplar Logs ...... 0,000 00
Eeceived notes, sixty and ninety days, and four months from date in payment of above.
Methudy & Meyer.
“We guarantee the above amount of walnut logs to be in Eeelfoot Creek or its tributaries, also our title to same, and, also, that same are free of all incumbrances, excepting a claim which T. Sowell will have of $50 when logs are delivered below Dyersburg bridge.
“Methudy & Meyer.”
“Five hundred and twenty logs being guaranteed in creeks, if more are there, this is to transfer our title to them also.
“ Methudy & Meyer.”
And also the following as to the logs in Pawpaw Creek : —
“ St. Louis, October 21st, 1878.
“ Messrs. Lieblce & Schrage:
“In our late sale to you of the Eeelfoot walnut, we include all the Pawpaw walnut in the creek (about 50 logs) by you paying the stumpage and giving us hereafter such amount as you may think just and right.
“ Methudy & Meyer.”
The notes given were paid by the plaintiffs at maturity. The petition avers that the logs fell far short of the dimen
There is a class of cases, exemplified by a large number of adjudications, in which it is held that the rule excluding parol testimony to vary the terms of a written understanding does not apply to a collateral obligation which involves no departure from the terms of the writing, and the proof of which would show what was the entire contract, whereof only a part was reduced to writing. The .courts say that, where the writing does not on its face purport to show the whole undertaking, parol testimony is admissible to supply omitted terms. But it is not always easy to reconcile the various processes which discriminate between this class of cases, and that wherein it is assumed that the writ_ ing contains the entire contract.
Thus, in Van Ostrand v. Reed (1 Wend. 424), the defendants sold to the plaintiffs certain exclusive rights in a patented threshing machine, and delivered a bill of sale describing the machine, but containing no covenants. The plaintiffs attempted to show that, in making the sale, the defendants represented and guaranteed that the machine was a new and useful improvement, which was untrue. This attempt was forbidden; the court holding to the presumption of law that the writing contained the whole contract. Yet, in Chapin v. Dobson (78 N. Y. 74), the plaintiffs gave to the defendant an agreement in writing,
Without undertaking to review and harmonize the numerous decisions to which our attention has been directed, we may state in general terms that, in two Michigan cases, we find an application of principles which, in -our view, should most fairly control the present controversy. In Phelps v. Whitaker (37 Mich. 72), a written order for a wind-mill, containing certain stipulations, was given upon the strength of representations made by the agent of the manufacturers and contained in a printed circular, concerning the working capacity of the mill. It was held, in an action for the price of the mill,-that the order did not constitute such a contract as would exclude evidence of these oral and printed representations, as collateral guaranties, and of their breach. The court said : “It was also urged that such evidence, as to conversations, was open to objection, as tending to change and enlarge the terms of the written contract between the parties, by parol evidence. * * * Every principle, both of law and justice, should hold a party bound by, and responsible for the
It would be difficult to maintain that the guaranty of the mill’s working capacity, in one of these cases, or that with regard to the kinds and quantities of the logs, in the other, was any more clearly an unwritten part of an entire contract, than was the description of the logs by scale bill showing their size and producing capacity, in the case before us. It is incredible that any man in his senses, buying logs to be converted into lumber for commercial purposes, would fix and pay the price fora certain number, without knowing, or having the least regard for their sizes, or for the quantity of lumber to be got from them. Five hundred and twenty walnut logs of one size may yield twice, or even five times, as much lumber as the same number of another size or avex-age. The plaintiffs had never seen the logs, and boxxght solely upon the defendants’ representations of what they were. It is, therefore, not
There is another view of the question here presented, whose tendency lies in the same direction. An elementary writer says, citing many authorities : “ But, if there be a fraudulent representation by the vendor, going to the essence of the contract, — and on the faith of which the contract is made, — the vendee may, by an action on the case, or by a bill in equity, recover upon proof of such representations, although they be not embodied in the written contract.” Story on Sales, sect. 360. The petition in this ease does not ask for a recovery of damages for a fraudulent representation. Considering, however, that our code does not contemplate any statement of legal conclusions, and that, although the petition may state such conclusions improperly, or may fail to ask for the proper relief, the court will grant whatever remedy may be appropriate to the facts stated, we incline to the opinion that, even as the petition stands, the rejected testimony might have been properly admitted for the purpose of a recovery upon the ground last stated. In any event we think that the ends of justice would have been better subserved, and no controlling technical rule would have been violated, if the testimony offered bad been permitted to go to the jury. With the concurrence of all the judges, the judgment is reversed and the cause remanded.