Neville v. Hughes

104 Mo. App. 455 | Mo. Ct. App. | 1904

REYBURN, J.

(after stating the facts as above.) — 1. The question, conspicuous at the outset of this case, is the relation borne toward each other by the reciprocal obligations assumed by the contracting parties in the contract of purchase, and in particular whether the covenant made by plaintiff for the continued publication of the newspaper was a contract so far dependent on the promises of the vendor, as to render the issuance of the paper for the lifetime of those oustanding subscriptions, which might be confined to the sixteenth day of August, 1899, a condition precedent, and its performance essential to recovery for breach by covenantor of covenant of unencumbered title to the property purchased. As in construing and effectuating all contracts, the object and intention of the contracting parties is to be looked for and discovered, if practicable from a survey of the whole instrument, and due effect to their intent be accorded. Among the features also to be regarded in determining whether covenants are dependent, are the times of their performance and whether the covenant considered goes to part or all of the consideration. Turner v. Mellier, 59 Mo. 526; St. L., etc. Co. v. Bissell, 41 Mo. App. 426; Sawyer v. Christian, 40 Mo. App. 295. The. latter element was formulated into a rule of construction thus expressed by Lord Ellenborough in an ancient case, which has been invoked by this court as well as by the federal tribunal of this jurisdiction: “Where mutual covenants go to the whole of the consideration on both sides, they are mutual conditions, the one precedent to the other, hut where they only go to a part, where a breach may he paid for in damages, there the defendant has a remedy on his covenant and shall not plead it as a condition precedent. ’ ’ Ritchie v. Atkinson, 10 East 295; Kauffman v. Reader, 108 Fed. Rep., 171; s. C., 54 L. R. A. 247; Springfield, etc., Co. v. Walt, 94 Mo. App. 76. This principle was further clearly elaborated in the last case thus: “The mutuality of covenants turns on the intimacy of their connection, considered in the light of the entire agreement, whether one was so hound up with the other that the failure of one party to perform a stipulation hindered performance by the other party, or left him without an adequate consideration for performance. ” In analysis of the expression adopted by the respective parties of the agreement between them, guided by these well-established doctrines, little room for hesitancy or question can exist, that the covenant on the one part to fill out the unexpired contracts for the paper by its continued issuance, and the obligation of warranty of title by defendant, agreements to he performed at varying periods, one operative at time of transfer and the other to he completed in the future, were not mutually dependent hut were designed by the parties to he distinct and separate obligations apart and disconnected.

2. Nor could defendanfiavail himself of the knowledge of the provisions of the contract with Harrington by plaintiff as a defense to his covenant, the basis of this action. The knowledge of both vendor and vendee, that the title to the property in defendant was qualified by his agréments with Harrington did not discharge the covenant made with plaintiff. The vendor may warrant his title as clear and perfect to personalty sold, when the vendee as well as he, himself, possesses notice of an outstanding claim; if the vendee usually exacts of the vendor- an express covenant against incumbrances as a safeguard against possible but unknown claims, the expediency and prudence of requiring such protection against a menace known to exist and threatening the validity of the title under certain recognized contingencies are the more obvious and reasonable. The evidence of such knowledge by or notice to plaintiff was immaterial and irrelevant and its exclusion proper and appropriate. Whiteside v. Magruder, 75 Mo. App. 364; Kellogg v. Malin, 50 Mo. 496; Williamson v. Hall, 62 Mo. 405; Clove v. Graham, 64 Mo. 249.

3. The defendant, by the language of his defense as well as by the testimony sought to be introduced in its support, under the mask of establishing an additional consideration to the purchase money, endeavored to enlarge and depart from the terms of the contract as executed by proof of the contract between Hughes and Harrington, and by the deposition of the latter. The contract between the parties hereto was complete in itself, and that oral testimony in such event is inadmissible is beyond controversy, and would doubtless be conceded by appellant. As felicitously expressed by the Supreme Court in a recent decision, “The reason undeilying the rule is to give stability to written agreements, and to remove the temptation and possibility of perjury, which would be afforded if parol evidence was admissible. ” Crim v. Crim, 162 Mo. 544.

The appellant, however, with considerable ingenuity, argues that when respondent agreed to fill out the unexpired subscriptions he agreed in effect to publish the Mail till the date in August, already mentioned, being the contract between Hughes and Harrington, and a default in this provision under the contract between the latter incurred a forfeiture, and thus the agreement between the parties hereto became in truth and substantially a conditional sale; it may be remarked that if such had been the understanding of the parties, the contract would have been so worded. Further such testimony would be an unwarranted infraction of the fundamental rule above invoked; after much wavering and legal debate, it is now established as a legal principle, quite general in its recognition, that the consideration of a contract at present may be the subject of explanation, in so far as it may be shown to exceed or fall short of the amount recited in the instrument, but where the evidence offered contradicts the recital of the consideration acknowledged, or where the consideration is made part of the contract itself, such parol evidence is inadmissible to modify it. Halferty v. Scearse, 135 Mo. 428; Jackson v. Railroad, 54 Mo. App. 636; Davis v. Gann, 63 Mo. App. 425.

The testimony proffered on behalf of defendant constituted no defense to plaintiff’s claim, the instruction directing the jury to find a verdict for the latter was justified under the conditions attending this case, the judgment is for the right party and is affirmed.

Bland, P. J., concurs. Goode, J., not sitting, having been of counsel.