50 Mo. App. 275 | Mo. Ct. App. | 1892
— This is a suit for damages for the breach of a contract. The cause was submitted to a jury, and at the close of the evidence the defendant asked and the court gave the following instructions: “1. All the testimony of plaintiff tending to show that, prior to the execution of the written offer of plaintiff to defendant, there was an agreement between the plaintiff and the defendant that plaintiff should have an opportunity until December court, 1889, to satisfy certain judgments and pay interest on Wilson note, and also until a later time to furnish abstract of title, is excluded from the consideration of the jury.
“2. The jury will find for defendant. ’’
Thereupon the jury returned a verdict for the defendant, and the plaintiff has appealed. The plaintiff has assigned many errors, but we need only consider the action of the court in giving the foregoing instructions.
The plaintiff alleged in his petition, and introduced evidence tending to prove, that only a portion of the contract between him and the defendant was reduced to writing, and that other matters pertaining to it, and which were made part thereof, rested in parol. The defendant denied this, and averred that the whole agreement was evidenced by writings.
“I this day agree that, if Mr. A. C. Frick will clean up and ship to me at Marceline, Missouri, the following property: Ten head of horses, one phaeton, three top buggies, one one-seated, two two-seated buggies, one- three-seated spring wagon, one cart, one writing desk, one stove, chairs, lamps and forks, nine wraps, two hair wraps, one lumber wagon, six set double harness; two set single harness, one cow; with the exception of the above cow and wagon which he may sell for me, I will pay freight on same and make him a warranty deed to my residence in Edina, Missouri, eighty by one hundred and eighty-one and one-half feet in the northeast corner of fractional block number 4, with improvements thereon, subject to a lien of $1,400, with interest paid up to date, bearing eight-per-cent, interest, to Mrs. "Wilson; and said the Erick assumes payment of said mortgage. I (Randolph) pay all taxes up to January 1, 1890. I will furnish deed and abstract of title to said property. I to be notified' by November 18, 1889.
“ [Signed] E. M. Randolph.”
It is also conceded that on the fourteenth day of November, 1889, the defendant wrote to the plaintiff the following letter of acceptance:
“Mr. E. M. Randolph.
“Dear Sir: — After duly considering your proposition I have concluded to accept of the same as per contract, and as we talked in presence of Mr. Schultz. So you can fix deed and abstract and send it to M. D. or Mr. Schultz as we talked, and the sooner the better. We will go to work at once and get buggies in ship shape. The possibility is we will' want the house at once or very soon.”
The plaintiff contends, and the defendant’s letter of acceptance shows, that the entire agreement was not reduced to writing; for the defendant in his letter of acceptance says: ‘‘After duly considering your proposition I have concluded to accept of the same as per contract, and as we. tallied in the presence of Mr. Schultz.” In the first instance the court permitted the plaintiff against the defendant’s objections to introduce evidence of conversations in the presence of Mr. Schultz in relation to the trade, and it was this evidence which the
The judgment of the circuit court will be reversed, and the cause remanded.