38 Mo. App. 467 | Mo. Ct. App. | 1889
delivered the opinion of the court.
The controversy in this case is touching a balance claimed by the plaintiff on an account for personal services. The plaintiff recovered judgment, both before the justice and in the circuit court, and the defendant, appealing, assigns for error that the circuit court admitted improper evidence, and gave erroneous instructions for the plaintiff.
The plaintiff claims that he worked for the defendant forty days, twenty-nine at an agreed compensation
The plaintiff gave evidence tending to show that the defendant sent repeatedly to him, requesting him to come and run the engine, and offering him one dollar and fifty cents per day for such work, and he returned for answer that he would not do the work for less than two dollars per day. Finally, according to plaintiff’s evidence, he and the defendant met when the following occurred: “He (defendant) wanted me to come and go with the machine. I just told him I would not go with the machine for less than two dollars, no use talking anything about it. He said he could not give it; that’s too much. I said then there is no use talking about it, I wouldn’t run it another day for less than two dollars, if I never run another engine. He then said, ‘Come on, I have got to have a man, I can’t let the engine stand idle.’ ” The plaintiff was then asked by his counsel to state the residue of the conversation, which he did, and the admission of this latter part of the evidence is claimed to have been erroneous. This error is not well assigned; the conversation was on the same subject, and tended to show that defendant had no other competent man to run his engine, and tended to show the inducement for offering the additional fifty cents per day to the plaintiff.
The instruction complained of, and given by the court at plaintiff’s instance, is as follows :
“ The court instructs the jury that if they should believe from the evidence that plaintiff Norton, in conversation with defendant Iiigbee, previous to the time he commenced to work for defendant in running and operating the engine of defendant, expressly told defendant that he, plaintiff Norton, would not work for defendant Higbee, in running and operating defendant’s engine for less than two dollars per day, and that thereupon the defendant Higbee sai'd to the plaintiff Norton, “Come on,” and the plaintiff then went to work for the defendant in so running and operating the said engine of defendant; then the court instructs the jury that said facts constituted a contract between the jiarties, that defendant would pay said plaintiff the sum of two dollars per day for so running and opierating said engine; provided the jury shall believe from the evidence that plaintiff commenced running said engine, believing he was to have two dollars per day.”
What constitutes a contract, and what is its proper interpretation, is for the court and not for the jury, and the only difference in that respect between a written and a verbal contract is that, in the former, the terms of the agreement are shown by the writing itself, and hence the facts are undisputed, whereas in the latter the facts are generally controverted, and the matter has to be placed before the jury in a hypothetical form. Where the evidence concedes that a definite
It is stated in the books in general terms, that where a contract is oral, the question as to what the contract was, is one for the jury under appropriate instructions from the court. Judge Leonard in Halbert v. Halbert, 21 Mo. 284, says: “The interpretation of written contracts is for the court, but where the matter rests in words, and the intention of the parties is to be ascertained from what they have said and done, it isa question for a jury.” In support of this proposition he cites Festerman v. Parker, 10 Ired. Law. 477, where the proposition in regard to verbal contracts is stated as follows : “If verbal, and the parties dispute about the terms of the agreement, it involves a question of fact, as to the terms, to be decided by the jury; but if there is no dispute as to the terms,, and, they be precise and explicit, it is for the court to (declare their effect.” In
But conceding, for the sake of argument, that, under all the surrounding circumstances, there was some ambiguity in the words found by the jury to have been spoken, and that the court, therefore, erred in charging them that the words, if they were spoken, constituted a contract that the defendant would pay plaintiff two dollars per day, yet the error would not justify a reversal, since the finding of the jury that the words were spoken, and that the plaintiff understood them to mean that he was to have two dollars per day, and went to work with that understanding, was the finding of all the necessary facts to constitute an estoppel, In that view the question of intention on part of -the defendant becomes immaterial, inasmuch as he became bound not because he intended to be, but because the plaintiff would be prejudiced and defrauded by his conduct, unless the law would treat him as legally bound. Forsyth v. Day, 46 Me. 176; Bank of Commerce v. Bernero, 17 Mo. App. 313.
The amount in controversy in this case is very small, and, in view of the fact that two successive juries have come to the same result, we would not be warranted in reversing the judgment, except upon error clearly prejudicial. The judgment is affirmed.