22 Mo. 405 | Mo. | 1856
delivered the opinion of the court.
The plaintiff seeks to recover damages for the non-delivery of a specific lot of hogs, bought of the defendant, and which the latter engaged would weigh four thousand pounds; and states that he paid the defendant twenty dollars, and made and signed a memorandum of the contract,-which he delivered to the defendant. The latter admits in his answer the making of a contract as specified on the written memorandum ; but insists that it was a contract for the sale of pork by the quantity and not of a specific lot, and that within the time allowed for that purpose he tendered part of the quantity, and would have paid the whole, but the plaintiff refused to receive it. Upon the trial, the written memorandum was read in evidence, and the plaintiff’ was allowed to prove, by parol, that “ the defendant sold a specific lot of hogs, in his pen, fattened by himself, and that the plaintiff was to receive no hog weighing less than one hundred and fifty pounds,” and then gave evidence that the defendant had disposed of this lot elsewhere. No evidence of the demand-of the twenty dollars was given, and the plaintiff, under instructions from the court, had a verdict for thirty dollars.
The only matters now material to the defendant are, the admission of the parol evidence, as to the contract, and the instruction allowing the plaintiff to recover the twenty dollars without a previous demand. Written instruments, executed by the parties themselves, are, in their very nature, most trustworthy evidence of what the parties have transacted. It is their own testimony, that they have furnished against themselves, and, of course, it can not be said of it, as of a witness, that it
As to the demand of the twenty dollars, we need only remark that this suit was for the breach of an existing contract, in the part performance of which the plaintiff had paid the money, and which, upon a breach of it, he would be entitled to
the judgment is affirmed.