10 Mo. App. 241 | Mo. Ct. App. | 1881
delivered the opinion of the court.
We had no doubt about this case upon the argument, but, as it involves a considerable amount and a question of some importance in the interpretation of contracts, we have looked carefully through the record and printed arguments to see if we could discover anything which would change our first impressions.
It is an action for a part of the purchase-money of a quantity of old iron sold by the plaintiffs to the defendant corporation. - The defence is a counter-claim, the effect of which is that the plaintiffs contracted to sell to the defendant a greater quantity of iron than the amount which they actually delivered to it, and that, the price of iron having risen, the defendant was damaged, in a sum named, by such refusal to deliver the quantity contracted for. The only contested question in the case relates to the validity of this counter-claim.
The evidence shows that there was a negotiation between Mr. Harrison on the part of the plaintiffs and Mr. Fusz on
“ St. Louis, July 23, 1879.
“Messrs. Ohoutecm, Harrison & Vallé, pity.
“ Gents : — Your proposal for 400 tons, more or less, of wrought scrap, consisting of one, one-half, and three-eighth plate blacksmith scrap, and lot of gas-pipes from Southern Hotel, and other scrap as shown your Mr. Fusz, at $22.00 per net ton in our yard, is accepted. You can commence hauling same at your convenience. Very truly,
“ $22.00. Shickle, Harrison & Co.”
The defendant thereupon commenced hauling and kept on hauling until it had taken away four hundred and thirty-five tons, when it was stopped by the plaintiffs.
The position of the defendant is, that there were in the yard of the plaintiffs about six hundred tons of iron of the kind described in this letter; that it was shown by Mr. Harrison, one of the plaintiffs, to Mr. Fusz, acting for the defendant; that it was thereupon agreed that the defendant should have all the iron in the yard at $22 per ton; and that this letter is simply a notice of acceptance of the antecedent agreement, which was the contract. The testimony given by Mr. Fusz for the defendant was that the agreement embraced all the iron in the juird, supposed at the time to amount to about four hundred tons, but which in fact amounted to about five hundred and fifty or six hundred tons. The testimony of Mr. Harrison, for the plaintiffs, directly contradicts this. He says that the offer which he made to Mr. Fusz was to sell the defendant a quantity pointed out, supposed to amount to about four hundred tons, at $22 per ton, the plaintiffs to retain the balance of what there was in the yard for their own use.
This case very strongly illustrates the wisdom of the rule which excludes parol evidence in the interpretation of contracts, the terms of which are clear. Two credible business men, both of them, no .doubt, conscientious and sincere,
Such being the meaning affixed by law to the words “more or less” in a written contract, the use of such words does not create such an ambiguity in the contract as will let in parol explanation. The court, therefore, erred in permitting the witness Fusz, against the objection of the plaintiffs, to testify as to what the quantity was which the parties intended to be embraced in the contract. On the contrary, the words “ 400 tons ” in the contract are to be taken, not as mere words of expectation, but as words of contract, limiting and defining the quantity to be sold. Morris v. Levison, 1 C. P. Div. 155; Leeming v. Snaith, 16 Q. B. 275. The construction put upon the contract by the defendant has the effect of erasing from the contract the words “ 400 tons.” This cannot be done. It is well settled, in interpreting any written instrument, that such.a meaning shall be put upon it as will, if possible, giv^ effect to all its parts.
If we are right in the foregoing views, the defendant’s counter-claim had nothing to rest upon. The court, therefore, erred in admitting parol testimony as to the amount of iron intended to be embraced in the contract, and in refusing to instruct the jury that the defendant was not entitled to recover on its counter-claim. For this reason we reverse the judgment and remand the cause.