175 F.2d 151 | 8th Cir. | 1949
Lead Opinion
This action is to recover on quantum meruit for a balance alleged to be due ap-pellee [plaintiff] for the construction of a sewer line for appellant [defendant] at the latter’s Siloam Springs, Arkansas, plant. The controversy in the trial court and about which this appeal is concerned revolves around the question of whether a certain written “Purchase Order” submitted to plaintiff and signed by his representative, his son, represented the agreement between the parties or whether an oral agreement, varying in one important respect from the written purchase order, constituted the contract. There was -a jury verdict for the plaintiff for $30,023.78 and interest for which judgment was given. After unsuccessful motions for judgment for defendant notwithstanding the verdict or for a new trial, this appeal followed. Generalizing the defendant’s contentions, it asserts that (a) the written purchase order constituted the contract between the parties and that parol evidence of conversations and understandings had prior to and contemporaneously with its execution, which were admitted as evidence, violated the parol evidence rule, (b) that the parol agreement asserted by plaintiff constituted a modification of the alleged written contract for which modification there was no consideration, and (c) that the court’s charge was erroneous. The facts necessary to an understanding of these issues follow.
Plaintiff, a contractor, was engaged in the performance of another contract for defendant at Siloam Springs, Arkansas, in the fall and winter of 1943. Early in January, 1944, defendant’s construction superintendent at Siloam Springs suggested to' plaintiff that he bid on the construction of a fifteen-inch sewer line which was to constitute a part of defendant’s Siloam Springs plant. Under date of January 18, 1944,
“The cubic yards of all excavation for the 15-inch tile sewer line is to be figured on the basis of a trench 33 inches wide multiplied by the average depth and by the length of the trench through the cut.”
It is clear from all the evidence that such a method of calculating the yardage removed, referred to as the “pay line width” method, contemplated the assumption of an arbitrary width of 33 inches regardless of whether the actual width of the trench was more narrow or wider than 33 inches. Plaintiff objected to that method of computation, and on March 10 and 11, 1944, wrote defendant two letters, the substance of which was that the assumption of a trench 33 inches in width for all “earth excavated trenches” was satisfactory, but that the amount of excavation to be compensated for should be the amount necessarily excavated in the construction of the trench, to be “determined from the final profile by a cross sectioning method.”
An estimate of work done was submitted April 30, 1944,, and another on May 31, 1944. These estimates contained, among others which are not in dispute, items for earth excavated trenches computed by the
“In our discussion on the 22nd you intimated that unless agreement was reached at once, you would discontinue work on the job. We feel it only fair therefore to put you on notice at this time, that in the event of such action on your part, we would immediately arrange for completion of the job by other contractors, and hold you strictly accountable for the additional cost, if any, and the damages for delay incurred ensuing from your refusal to perform under our contract with you.
“Please do not lose sight of the fact that the original contract called for completion within 45 days after Feb. 22, 1944. Completion of the job has already been long delayed, and has resulted in great inconvenience to the company, and considerable censure from the local inhabitants. Furthermore, the beginning of operations in the plant were delayed, and have been hampered, since actual operation started as a result of the failure to complete the contract in accordance with its terms.” Upon receipt of that letter plaintiff’s evidence was that he stopped the work, discharged his workmen, and notified defendant’s construction superintendent thereof; that the following day the construction superintendent advised plaintiff that he had been instructed to request him to complete the work and that payment would be made at the unit prices set out in the purchase order and for the quantity of material excavated, computed as plaintiff computed those quantities in his estimates; that plaintiff thereupon called his workmen back, resumed the work after an interruption of two days, and continued until its completion satisfactory to defendant on August 10, 1944. Two lump sum payments were made on account in July and August, totaling $25,000. These payments were not allocated to any specific items in the estimates above mentioned or a later estimate (in the same form), submitted June 30, 1944. The fourth and final estimate was submitted (also in the same form) September 1, 1944. The foregoing outline of the evidence from plaintiff’s viewpoint will suffice to indicate plaintiff’s theory of the case as disclosed by his evidence.
The defendant’s theory of the case, which its evidence tended to support, was, simply and tersely stated, that at the April 26 conference plaintiff’s son and Mr. Schwendener agreed upon the terms of the contract, including the method of computing the rock excavation, and that the agreement reached was the agreement evidenced by the written purchase order signed that day. Defendant’s evidence contradicted that of plaintiff’s with respect to whether the terms and conditions of plaintiff’s letters of March 10 and 11 and April 5 constituted a part of the agreement reached, and also contradicted plaintiff’s evidence that defendant’s construction superintendent had assured plaintiff that rock excavation would be paid for upon the method of computation claimed by plaintiff. The superintendent testified that he told plaintiff he would be paid in accordance with the provisions of the purchase order.
In plaintiff’s complaint he alleged that the purchase order was signed by plaintiff’s son at defendant’s request upon the assurance that any adjustments with reference to the disputed question of computing the amounts due for excavation could be determined upon completion of the work. When defendant pleaded'the purchase order in its answer as the agreement between the
From the pleadings and the evidence the position of the parties is reasonably clear. Plaintiff contended that the purchase order was not the contract; that it was agreed at the April 26 conference that the unit prices should be as set out in the purchase order; that the pay line width should apply to machine (earth) excavation; that the method of computing rock excavation would be calculated as stated in the March 10 and 11 letters by the cross-section method; that the extra earth excavation and replacement necessitated by the blasting should be compensated for as requested in the April 5 letter at 80 cents per cu. yard; and that thereafter a dispute arose as to the applicability of the purchase order pay line width provision to blasted rock excavation and it was agreed that if plaintiff would finish the job defendant would pay for the blasted rock excavation and the additional earth excavation and replacement made necessary by the rock excavation in accordance with the letters of March 10 and 11 and April 5 and the manner of computing those quantities in plaintiff’s estimates. Defendant contended that the purchase order constituted the contract.
If the written purchase order did evidence the agreement between' the parties, evidence of prior or contemporaneous negotiations and understandings contradictory to its unambiguous terms (and plaintiff does not contend that its terms are ambiguous) was not admissible.
New Amsterdam Casualty Co. v. United States Shipping Board, 4 Cir.; 16 F.2d 847; Crim v. Crim, 162 Mo. 544, 63 S.W. 489, 54 L.R.A. 502, 85 Am.St.Rep. 521; Supreme Lodge, K. P. v. Daizell, 205 Mo.App. 207, 223 S.W. 786; Fischman-Harris Realty Co. v. Kleine, Mo.App., 82 S.W.2d 605; England v. Houser, 178 Mo.App., 70, 163 S.W, 890. If the purchase order was the contract, under the foregoing authorities plaintiff may not vary its terms by parol evidence. But in order for the foregoing rule-to apply it must first be established or conceded that the purchase order was the contract. In the case of In re Hicks & Son, 2 Cir., 82 F.2d 277, 279, Judge Learned Hand, speaking for that Court, said:
“It is well settled that whatever the formal documentary evidence, the parties-to a legal transaction may always show that they understood a purported contract not to-bind them; it may, for example, be a joke, or a disguise to deceive others. (Citing cases.) It is no objection that stich an understanding contradicts the writing; a writing is conclusive only so far as the parties intend it to be the authoritative memorial of the transaction. Whatever the presumptions, their actual understanding may always be shown except -in so far as expressly or implicitly they have agreed that the writing alone shall control.”
The general rule is stated in 32 C. J.S., Evidence, § 972, as follows:
“The objection to parol evidence does not apply where it is offered not for the purpose of contradicting or varying the effect of a written contract of admitted authority, but to disprove the legal existence or rebut the operation of the instrument, and in order to determine the validity of the writing the true character of the transaction may always be shown. So also evidence which is offered not for the purpose'of varying or contradicting the terms of a written instrument but to show that it was never' in-tetided to be operative between the parties and never in fact had any legal existence as a contract or grant, is admissible.”
The rule is the same in Missouri where this contract appears to have been made. In Barrett v. Davis, 104 Mo. 549, 16 S.W. 377, loc. cit. 379, the Supreme Court of Missouri said:
“Facts going to show that a writing never acquired original vitality as a contract are not considered as infringing the rule of evidence excluding verbal contradiction of
In McElvain v. St. Louis & S. F. R. Co., 151 Mo.App. 126, 131 S.W. 736, 746, the Court held:
“For the purpose of showing that the plaintiff did not assent or agree to the terms of the contract, extrinsic evidence is admissible, not to contradict its express terms, but to show whether it was fairly and honestly entered into.”
The same rule is asserted in the later cases of Thompson v. Baltimore & Ohio R. Co., D.C.Mo., 59 F.Supp. 21, 40; Vardeman v. Bruns, Mo.App., 199 S.W. 710, and Elmer v. Flett, Mo.App., 297 S.W. 985, 988. In the latter case the Court said:
“The law is well settled that a writing in the form of a contract may be shown never to have become operative as a contract.” Citing Vardeman v. Bruns, supra, and Poplin v. Brown, 200 Mo.App. 255, 205 S.W. 411.
And if it be said that the contract is controlled by the law of Arkansas, the same rule is recognized there. Marshall Motor Service v. Norm Co., 194 Ark. 805, 109 S.W.2d 662; National Cash Register Co. v. Holt, 193 Ark. 617, 101 S.W.2d 441; Massachusetts Mutual Life Ins. Co. v. Brun, 187 Ark. 790, 62 S.W.2d 961. It has been generally recognized. McCormick Harvesting Mach. Co. v. Faulkner, 7 S.D. 363, 64 N.W. 163, 58 Am.St.Rep. 839; City National Bank v. Dwyer, 47 S.D. 567, 200 N. W. 109; McJunkin v. Richfield Oil Corp., D.C., 33 F.Supp. 466; Texas Co. v. Berry Garage, 121 Cal.App. 455, 9 P.2d 241; P. A. Smith Co. v. Muller, 201 Cal. 219, 256 P. 411; Choolgian v. Nordstrom, 111 Conn. 572, 150 A. 499; Gardner v. Gardner, 45 R.I. 214, 121 A. 385; State Savings & Loan Co. v. Strong, 226 Ala. 453, 147 So. 436; La Cava v. Breedlove, 77 Cal.App.2d 129, 174 P.2d 880; Greeley v. Greeley, 119 Me. 264, 110 A. 637; Massachusetts Biographical Soc. v. Howard, 234 Mass. 483, 125 N.E. 605; Martin v. Clem, 138 Okl. 245, 280 P. 826; J. M. Radford Grocery Co. v. Noyes, Tex.Civ.App., 233 S.W. 117; Whitcher v. Waddell, 42 Wyo. 274, 292 P. 1091; Haugens v. Foster, 320 Ill.App. 212, 50 N.E. 2d 524; Cumnock-Reed Co. v. Lewis, 278 Ky. 496, 128 S.W.2d 926; Ware v, Allen, 128 U.S. 590, 9 S.Ct. 174, 32 L.Ed. 563.
The only real issue in the case was whether the purchase order was “accepted” —to use its language — as the contract between the parties. The trial court properly admitted parol evidence on that issue. And if it did not represent a meeting of the minds of the parties, all that transpired relative to the agreement between the parties was clearly admissible to establish what the agreement actually was. Upon plaintiff’s theory of the case the parol evidence, about the admission of which defendant complains, was competent upon the issue that the purchase order did not constitute the contract and to show what the contract actually was.
Defendant’s contentions that an oral modification of a written contract must be supported by adequate consideration to he binding and that the evidence did not show such consideration are germane to the instructions and will be considered in connection therewith. Its further contention that there can be no recovery on the basis of an oral modification of a written contract when such oral contract has not been distinctly pleaded has been waived.
The jury were instructed concerning the respective contentions of plaintiff and defendant. It was instructed that plaintiff contended that the purchase order was signed with the understanding that it was essential under defendant’s method of doing business for payment to be made by defendant and that if it was signed by plaintiff, when the sewer line was completed plaintiff would be paid upon the unit prices provided in the purchase order and in accordance with plaintiff’s estimates of the work completed, and that it was in reliance on those representations that plaintiff signed the purchase order. The jury were then instructed that it was defendant’s contention that defendant was only required to pay plaintiff for excavation computed upon the basis of a trench 33 inches wide because the purchase order so provided and the purchase order was freely and voluntarily executed without any representations as claimed by plaintiff and was therefore
There is an irreconcilable conflict and inconsistency in these instructions and they do not present to the jury for determination the issues made by the evidence and the pleadings. The jury should have been instructed that it should find whether the purchase order was agreed to on April 26, 1944, as the contract between the parties. It should have been instructed that if that question was answered in the affirmative, plaintiff was bound by it and could not recover more than the amount tendered, for there was no ambiguity in the terms of the pay line width provision of the purchase order. The plaintiff frankly concedes that and properly says that the question was whether that provision was intended to be applicable to rock excavation — another way of saying that the purchase order was not the contract. Instead of submitting that question, the instruction tells the jury that the purchase order was the contract but could be avoided if certain facts were found. None of those facts would justify the avoidance of the purchase order if it was the contract. (1) The purchase order did not fix the time of payment, hence failure to make payment thereunder prior to completion of the work was not a violation of its terms and did not justify its rescission, as the court in another instruction pointed out. Only in the event plaintiff’s theory was correct that the purchase order was not the contract, and that another and different agreement including a promise to pay on periodical estimates actually was the contract which was made on April 26, 1944, could there have been an obligation
Plaintiff contends that the error of the trial court in instructing the jury that the purchase order constituted the contract between the parties was favorable to the defendant and should not warrant a reversal. In view of the length of time this cause has been pending it would be desirable to reach that result. And if that error could be segregated from the remainder of the charge, leaving the remainder in such form that it submitted the real issues, plaintiff’s contention would warrant more serious consideration. But this erroneous premise ignored, and in fact withdrew from consideration, the primary issue, i.e., whether the purchase order really evidenced the agreement. It was such an integral part of the remainder of the charge that its segregation therefrom left the jury without any direction on any proper theory. Under those circumstances, we cannot surmise what the jury might have done had they been properly instructed.
The conceded error in the instructions relative to the measure of the recovery need not be considered. The jury took care of that by their verdict, and it is improbable that the error will be repeated.
For the reasons noted the cause is reversed and remanded for a new trial.
In the printing of the record much redundant and immaterial matter has been included. The record consists of 342 pages, exclusive of index, and seems to have been prepared on the theory that the cause was to be tried de novo in this court. This, however, is an appellate court where litigants may present for our consideration alleged errors committed by the trial court, and Rule 10(a) of this court, among other things, provides that, “The appellant or petitioner shall serve and file with his brief a separate printed record carefully indexed which shall contain a clear, concise cmd condensed statement of so much of the entire record on appeal for review as may be essential * * * to enable the court to decide the questions presented for review.” Subdivision (b) of the same rule contains provision that, “The printed record shall also contain so much of the evidence, either in narrative or question and answer form, as may be necessary to enable this court to determine the questions presented for decision.”
Even a cursory examination of the printed record discloses that it contains a veritable avalanche of redundant and immaterial matter. For example: (1) The entire testimony in question and answer form has
This is such a flagrant disregard of our rules that we feel it ought not to go unnoticed. It would be manifestly unjust to assess the cost of the printing of such unnecessary matter to the losing litigant. Newton v. Consolidated Gas Company, 258 U.S. 165, 42 S.Ct. 264, 66 L.Ed. 538. The Clerk of this court will in taxing the costs disallow the cost of printing all such immaterial matter.
From letter to Pet Milk Co. from John V. Boland Construction Co., March 10, 19-14:
“Reference to paragraph marked #3: ‘All trench excavation shall be 33" wide while all pier excavation shall be 33 x 54" x 33" deep, and the cubic yardage determined from the ■ final profile by a cross sectioning method.’ ”
Letter to Pet Milk Co. from John V. Boland Construction Co., March 11, 1944: “Gentlemen:
“Referring to our letter of March 10, with particular reference to paragraph three, the wording should read that all earth excavated trenches shall be 33 inches wide.
“Tours very truly,
“John Y. Boland Construction Co.”
Letter to Pet Milk Co. from John V. Boland Construction .Co,, April 5, 1944:
“Attention: Mr. Schwendener.
“Dear Sir:
“Subject: Sewer Construction
“Siloam Springs, Arkansas.
“Since starting this job we have encountered conditions contrary to those talked over at the time of bidding.
“This job was bid as a normal excavation job, but due, to blasting it has become necessary to excavate a “V” shape ditch instead of shoring as [contemplated], of which we are now preparing cross sections.
“This condition necessitates the removal and replacing of three to four times the amount of yardage of wet excavation in order to reach the Sewer Grade. This is due to subterranean springs wliicb are opened up with each blast of rock encountered.
“We feel justified in asking you to consider the matter of 80^ per cubic yard for this additional earth excavation which will about cover the cost of removing and replacing this surplus earth.
“We thank you for your consideration of same, we are
“Very truly yours,
“John V. Boland Construction Co.”
From ’ purchase order,' dated February 18, 1944:
“The cubic yards of excavation for the 15" tile sewer line is to be figured on the basis of a trench being 33" wide multiplied by the average depth and by the length of the trench through the cut.”
From the Record, p. 312:
The Court instructs the jury that on the 26th of April, 1944, plaintiff and defendant entered into a contract in the City of St. Louis, State' of Missouri, for the construction of. a water supply line and relief sewer, at the plant of the defendant at Siloam Springs, Arkansas, which construction work was then and there in progress; that under the terms and provisions of the contract aforementioned the plaintiff may not recover any sum in excess of $6929.39 and interest from the date of demand to October 27th, 1944, at the rate of six per cent per annum."
Dissenting Opinion
(dissenting).
The record on this appeal, stripped of nonessentials, presents the following case.
On April'26, 1944, the appellant as owner and the appellee as contractor met for the specific purpose of reducing to writing .an agreement between them for the construction by appellee of a sewer line and a water line, to serve one of appellant’s manufacturing plants. The parties had agreed upon the unit prices to be paid appellee for the excavation necessary in the work to be done. They had not agreed upon the method of computation of quantities of earth and rock excavated for which appellee was to be paid the unit prices a cubic yard agreed upon. At the time of this meeting appellee was fully advised concerning the difficulties to be encountered in the excavation work. He knew that he would be required to excavate quantities of both earth and rock in excess of the quantities for which he would receive payment if the method of computation insisted upon by appellant was accepted by him. Nevertheless, he accepted the terms offered by appellant and signed a written contract which plainly expressed the method of computation of the quantities of earth and rock excavated in the work and payable at the unit prices agreed upon.
Appellee can not now be heard to say that the written contract for the performance of the work, signed .by him and by the appellant on April 26, 1944, was not intended to be binding upon either of them, nor may he be permitted to vary the terms of the contract fixing the method of computation of quantities of earth and rock excavated by proof of prior or contemporaneous oral agreements between the parties. The trial court was correct in so instructing the jury. New Amsterdam Casualty Co. v. United States Shipping Board, etc., 4 Cir., 16 F.2d 847, 849, 850; Crim v. Crim, 162 Mo. 544, 63 S.W. 489, 491, 54 L.R.A. 502, 85 Am.St.Rep. 521; Supreme Lodge K. P. v. Dalzell, 205 Mo.App. 207, 223 S.W. 786, 789; Fischman-Harris Realty Co. v. Kleine, Mo.App., 82 S.W.2d 605, 611; England v. Houser, 178 Mo.App. 70, 163 S.W. 890.
The question of the validity of the alleged oral contract of June 1944, relied upon by appellee as changing the method of computation of quantities of earth and rock excavated by appellee, is controlled by Missouri law. See Lange v. United States, 4 Cir., 120 F.2d 886, 889. The performance of or promise to perform an obligation previously existing under contract is not sufficient consideration to support another contract. Lingenfelder v. Wainwright Brew^-
There is no room in this case for the application of the so-called hardship rule (see Watkins & Son v. Carrig, 91 N.H. 459, 21 A.2d 591, 138 A.L.R. 131, 133), since appel-lee at the time he executed the written contract of April 26, 1944, was fully advised as to the conditions confronting him in the work. No Missouri case applying the hardship rule has been called to our attention by appellee, and none has been found.
For the reasons stated, I would reverse the judgment of the District Court and remand this case with directions to enter judgment for appellee for $6,929.39, the sum which the parties agree is owing to appellee if the rights of the parties are controlled by the written contract of April 26, 1944.