Quick v. Glass

128 Mo. 320 | Mo. | 1895

Macfarlane, J. —

The suit is for damages for breach of a written contract under which defendant sold to plaintiff a stock of goods in his store at Porrest City. Each party was a merchant doing business in said town. Terms for the sale of the stock in trade of each were proposed and plaintiff had the right to buy or sell on the proposed terms. The terms were as follows: “Said both stocks of general merchandise are to be invoiced January first to sixth, 1892, at net cost price, with no freights or drayage allowed, and all goods damaged to be a reasonable reduction, fifty per cent, to be deducted from foot of invoice, money to be paid after inventory is satisfactorily footed up.” Plaintiff elected to take the goods on these terms. There was no dispute over the contract as thus expressed. It was concluded December 15, 1891. Defendant continued selling the goods until January 1, when what remained were invoiced and delivered to plaintiff and accepted by him. The evidence tended to prove that a large part of the best of the goods was sold between the date of the contract and the date of the invoice.

On the trial the defendant was permitted to introduce evidence tending to prove that there was a verbal understanding at the time the proposition of sale was submitted that the one who might be the seller should have the right to continue to sell at retail until the time fixed for making the invoice.

This instruction asked by plaintiff was refused: “The court instructs the jury that they will exclude all evidence of any contract between plaintiff and defendant, except that contained in the written contract introduced and read in evidence in this cause.”

The court submitted to the jury, by an instruction given on its own motion, the question whether or not, under the agreement of the parties, defendant had the right to sell at retail until the time for making the invoice.

The judgment was for defendant and plaintiff appealed.

The contract only provides how the purchase price shall be ascertained; the time of making the invoice; and when payment should be made. These requirements the parties were not willing to intrust to the uncertain memory of witnesses, and, having put them in writing, evidence was not admissible to vary or contradict them.

But this was a sale of goods to be executed in the future. The object of making the invoice was to determine the quantity of the goods in order to ascertain the price to be paid. Why was this postponed for fifteen days, if no sales were to be made in the mean time? The contract as written was evidently incomplete in not providing what should be done with the goods between the date of the contract and the date of delivery. This omission, we think, could be supplied by evidence outside the writing. ‘‘Where there is but a memorandum of a contract, and it does not purport to be a complete expression of the entire contract, or where a part only of the contract is reduced to writing, the matter omitted may be supplied by parol evidence.” State ex rel. v. Hoshaw, 98 Mo. 360; Rollins v. Claybrook, 22 Mo. 406.

The right to sell was not inconsistent with any part of the contract reduced to writing, but seems rather to have been contemplated by the parties. No error appearing, the judgment is affirmed.

All concur.