*1 268 SUPREME COURT OF MISSOURI,
Walton v. Carlisle.
122
Kendrick,
54;Mo.
v.
Schemme,
Schierbaum
1.] But those
were not cases of
lost will, of whose con
secondary
tents
evidence
alone
obtainable. Where sub
stantial evidence has been adduced to
ex
the due
show
ecution of the
will,
it has been
that it
lost,
prove
revoked, and
it is
contents,
its
then admissible to
in corroboration of the
evidence
testator
what the
other
[1
himself
about it.
Underhill
Wills,
on Law of
sec.
(6
Ed.) p.
277; 1 Jarman on
Am.
Wills
159,note U; South
worth v.
Adams, Biss. 256; In re Lambie’s
Estate,
Conoly Gayle,
Mich.
On the whole we believe that the contents of this lost sufficiently proven will were the best obtainable evi- dence, of the circuit court should be affirmed. It is so ordered. All concur. Ap
MRS. A. M. WALTON v. D. CHARLES CARLISLE, pellant. One, 12, 1926, Division March Special 1. PLEADING: Recovery upon Justice of Peace: Contract: pleading applicable orig- Modification. Technical rules of to suits inating applied originating in circuit courts are not to he to'suits justice peace. in the court of a If the statement filed in the justice notify court is sufficient to the defendant of the nature sued, sufficiently the cause of which he is definite subject-matter, sup- to bar another action for the same and is not planted by pleading upon appeal, a new filed in the circuit court justice it will not he held that sued in court on special written contract was allowed recover in the circuit special court a modification of such 'contract and a waiver of its terms. -: -: -: -: Bar to Action.
2. Where the action originated peace appealed, the, of a the court and was default, judgment by court, after to the circuit further no Yol. 313] TERM, pleading filed, question the test whether sued on a cir- contract and was recover in the allowed to cuit ac- another different cause of contract or *2 is, apprise plaintiff’s tion did statement filed in the against defendant of him and the nature cause of action subject- sufficiently itwas har same definite to on the another plaintiff matter? Where for the sale of sued on a written contract large hay, pursuance alleged she thereof amount of and that pay, and asks two for defendant refused to carloads which hay, appeal de- it value of the and on for the contract veloped delivery, de- but that the contract had time-limit had, objection, six carloads after fendant without received objected expired, to receive time-limit had and had to and refused expired, carloads, shipped the had after said time-limit two hay stained, ground damaged whereas there was was and good stained, damaged hay but in that was not or evidence condition, recovery authorizing if defendant an instruction hay damaged stained or and the was not waived time-limit loaded, proper, sued that held it will not be when was and
n permitted aon to recover and on a written contract was thereof; so, especially had where defendant and modification carloads, applying recognized writing and to the two the contract surprise. filed affidavit of no price Breach: Sales: Waiver. CONTRACT: In a suit for the sale 3. contract, hay, defendant can- a written and delivered under executory terms and conditions of its certain not insist parties recognized parties the contract as both waived. Where both conditions, executory despite being which defend- in force still suich invoked, might and continued to and he insisted have ant heard, shipments in a suit he will not be under the receive received, hay shipped to insist and value of the contract for the hay executory provision if was re- an contained days pay ninety estimated he would ceived after appraisers. three made value Goods; -; Damaged -: Instruction. Where the -: 4. hay loaded,” damaged provided was but that “no defense, quality, grade and defendant’s and as to silent otherwise hay shipped value of the the contract the vendor in a suit damaged vendee, stained was was that requiring proper grade, an instruction was not received damaged prop- when loaded” was not jury “the find that issue, erly covered SUPREME COURT OF MISSOURI, loaded, good condition, giving stained when authorizes of such instruction. Estoppel, J., 118, p. 1116, 75; 205, p. 1202, 21 C. Section n. n. Section Peace, J., 226, 612, 98; p. 21. Justices of the Section C. n. Section 228, p. 616, 23; 47; 229, 617,; p. 51; 564, p. 620, n. Section n. n. Section p. 836, Pleading, Cyc., p. 703, p. 42; p. n. 38. n. n. n. Sales, Cyc., p. p. 49. n. n. Appeals.
Transferred Kansas Court Affirmed; Hughes appellant.
Roland and Omar E. Robinson for (1) This contract; suit based a written that contract was made filed, petition; provides delivery, the contract re- ceipt ninety days, *3 all within and the contract pointed any, adjusting: out method a the if differences, parties ninety-day between the at the thereto, the end of period. proceeded upon theory The suit the that tract was in effect at all times. Not one word is found petition a rescission or that about modification of agreement contract. a Not a line about different or provisions, ignored waiver its it or consent disregarded. plaintiff got When counsel for the into they parties trial of the claimed case, conduct the had modified the contract. But no effort made petition, amend so as declare modified contrary, or rescinded contract; on the the case made petition then, stood and still stands, the written contract sued in on the first instance. When the court jury, wholly came to instruct sued was disregarded ignored. Instruction number one tells jury that it can return a verdict for it finds if that there was an oral modification of the written con- litigant A tract. cannot declare one contract, recover another. Cole v. 154 Armour, 333'; Mo. Roaring App. Fork Potato v. Clemons, Growers 193 Mo. App. McNeeley 653; Williams, Cockrell v. 195 Mo. 400; 271 TERM, 1925. v. Carlisle._( I_Walton stipulating (2) 219 145. Contracts v. S. W. Carlisle, upheld. Agreements as- mode for a for arbitration are dispute may certaining come into are amount precisely contract before the what and that valid, provides, ascertain- case viz.: method of court in this A appellee’s left on hands the amount period. No construction other end of possible. paragraph v. Bales 69; O. sec. 5 J. Murphy App. App. 61 675; Co-., v. Ins. Mo. Gilbert, 84 Mo. App. App. 69 323; Co., v. Ins. 61 Mo. Mo. McNees App. Vining 44; Co., Ins. 65 Mo. v. Ins. 232; Dautel v. Co., Carp App. App. 104 502; v. Mo. 311; 89 Ins. Mo. App. Hamilton 527; 106 Mo. v. Ins. Eowble v. Ins. Co., Co., 136 U. S. Sfwrgeon for .re- L. Smithson
O. M. Edmonson and spondent. permit plaintiff plead
(1) proper It was prove because this case a modified contract and Eddy, originated 13;Mo. v. court. Metz App. Maness, 420; Herrick v. v. Guthrie, Walker Thompson, App. 213' v. S. W. 399; Chamberlain per- having (2.) modified and been The 497. any ap- was no occasion as modified there formed ap- by respondent. (3) praisement or other escape advantage pellant failure own cannot of his take liability v. J. sec. Press the contract. C. Schisby, George, S. W. 106 Atl. Simons *4 any (4) Appellant error to variance between waived proof, by filing show- pleading affidavit and the the ing respect had been Sec. he misled. R. in what S. Harvey, 251. W. 1919; Newton S'. a action was commenced C.—This before
SEDDON, Township, peace for Kaw within and Jack- here) by (respondent filing plaintiff County, son following Contract: now “Comes Statement of SUPREME OF MISSOURI, COURT
Walton, v. Carlisle. plaintiff and for cause of above-named her against that on defendant, above-named states into, day about the 22nd of she entered March, 1920, purchase of contract with the the sale and defendant large plaintiff a hay which said amount of owned Richards, then
was located at and near the town of paid for Missouri, the ing of accord- State be delivered and copy terms of said of which here- contract, a to attached and made hereof, marked ‘Exhibit Ad pursuant
“Plaintiff further states that to said July, day and on tract, or about she the 23rd shipped City, to. defendant at one Kansas Missouri, carload of said under said contract, which shipped in car No. Missouri Pacific hay shipped by plaintiff also one carload of to.the de- under the fendant, terms said contained contract, Southern No. which said car on or day September, about the 24th “Plaintiff further states that the value of the according contained in is, above said mentioned, the terms of sum dol- said five hundred agreed which the lars, defendant his pay plaintiff therefor; demand de- has been made of plaintiff payment fendant for the of said sum pay but the defendant $500, refused! and still refuses to the same. judgment against prays
“Wherefore, defendant in the sum five hundred dollars, interest per per thereon rate of at the cent six annum, from Oc tober 1, 1920, the date of her demand, and for costs.” pleading Defendant filed no. thereto. judgment justice’s
Plaintiff recovered in the whereupon (appellant appealed here) default, defendant County, to the Circuit Court of Jackson where trial was jury, resulting had de before judg- novo in a verdict and ment for in the. sum $500, appealed Appeals, to the Kansas Court *5 TERM,
Walton v. ‘Carlisle. re nisi latter court reversed plain ground that for retrial manded cause had tiff sued written contract had. thereof. The Kansas recovered a modification deeming Appeals, be its decision to> Court of however, Ap Springfield Court of conflict with the peals of decision Thompson Company, 213 W. & S. Chamberlain for this certified and transferred the cause to our determination. hay large quantity of
Plaintiff was the owner of E. Belkham at or near One T. Richards, located bought Missouri. receiving from defendant, for this fifty per The a commission his services. of ton cents between sale a written contract was consummated plaintiff, party part, first defendant, whereby party part, the second -dated March 22, of Rich- f. o-.b. cars at defendant, sold said to- delivery per stipulated price at ards, Missouri, ton, thirty days bu]t date, within from furnished, as cars weights loading Richards, at time of determined cars executed on Missouri. contract was March by plaintiff, through her Fred Wilmot, one person. D. The written Carlisle, Charles defendant, provisions: contained these party part, by car of of reason second “Should necessary shortage, above be unable to secure bay thirty days an ad- date, within then movement sixty may days taken time not to exceed be ditional party, ad- if the car situation is such second necessary movement. to secure ditional time is period ninety-day men- the end of the above “At party will all the second receive tioned, pay party above-described, events; at all will part upon persons estimate of three disinterested first end of said all left his hands at the by party part, period, one selected one first part, and these two selected to choose second prices named. hereinafter third, basis Sup. —18. SUPREME COURT OP MISSOURI,
Walton, -v. Carlisle. “Party part agrees pay party of the second *6 part first through at Ft. Scott, Kansas, T. Belkham, E. by party part upon amount shown due of the first certif- weights completion icate of the time hay. load- of each car of . . . damaged hay “No is to be all loaded and cars to be party part pay loaded over 20,000 lbs. unless of the first freight to- excess destination. petrso-ns
“The estimate of the three disinterested- above-referred to, which settlement shall be made ninety-day subject period, at the- end of to correction according weights per prices to- actual basis ton shipments actually hereinbefore mentioned when are party second.part be--subject made; but shall to charges: may storage reasonable- such said o-f made for hay period for the ninety-day additional after said period.
“It ninety-day that at understood, the end of said period any hay date, should from this- of said be left on party’s- may, first option, hands, she at her this declare hay so far contract, as such is concerned, terminated, and may hay sell said charging the market at that time, any deficiency of the second may occur price price between the obtained and the herein con- tracted for.” shortage evidence that there was discloses during spring
cars summer plain- agent, get tiff’s promptly order to Wilmot, cars ship- which to under applied the the several placed, only railroads for cars to be set or not vicinity, at Richards station, but at other stations in the actually so-that loaded on the cars at several including By arrangement stations, Richards. made through paid plaintiff Belkham, allowed drayage for the cost additional to those stations required longer haul than to: the station at Richards. Nineteen shipped carloads of in all were to defend- ninety-day period ant. The referred to in the written TEEM, OCTOBEE on June 1920. Eleven expired eight said shipped period, were within controversy, two cars in were cars, including- expiration ninety-day period. after of said On June ninety- six before only days expiration 14,1920, defendant wrote a letter day period, as follows: Wilmot, we an far this hay out, effort making get
“As that we could. We this have have made effort every ow sold and are us de- Timothy pushing customers livery, but Mr. Belkham he has us that has done advised he and we have written everything get could the cars superintendents numerous letters agents without in, roads to- cars set trying get various more all of avail. would be than pleased get We *7 sug- can offer away you any stuff loaded out and if right mighty to we will help cars, that be get will us gestions ’’ you. (Italics ours.) to hear from glad to done either the written Nothing ninety-day period, respect at the end of said tract, or the an estimate appraisers making to the selection of said unshipped provided quantity hay, ninety- end of contract. Neither did at the plaintiff, to declare the con- elect to exercise the day period, option mar- the remaining tract terminated and sell on the deficiency between defendant ket, charging the contract these price. Obviously, and price obtained or waived both of the contract were provisions ignored insisted either they at were least, parties; had trans- nearly period When the party. Belkham, to went see Wilmot, plaintiff’s pired, on keep, shipping asked Wilmot “to thereupon who assured the Carlisle Commis- Belkham me that Mr. hay. to me hay out, to and for get wanted Company sion had sold.” (Ital- they shipments continue ours.) ics to acted tends show that Belkham
The evidence relating in most the details defendant to behalf of SUPREME COURT OF MISSOURI, y. Walton Carlisle. terms, parties. transaction between tbe Tbe writ- tbe arranged by plaintiff ten Belkbam, contract were representing provides pay- defendant. Tbe contract bay through Appel- ment for is to made Belkbam. lant’s letter 14, 1920, of June discloses Belkbam en- get transport bay. deavored which to tbe Belk- arrangements places bam made the times tbe shipment agent loading and instructed shipments. toas tbe destination of the' various Tbe weights ship- lading covering and bills of tbe several by plaintiff’s agent ments were delivered who Belkbam, issued and delivered to drafts drawn on defend- payment shipments. respective ant in tbe tbe After expiration ninety-day period prescribed in the con- bay shipped paid six tract, carloads of were price tbe defendant tbe named in written contract. controversy, bay Relative to the two carloads of tbe first car was to-defendant at Kansas July July 23, and arrived at its destination on accept telegram Defendant refused to tbe car and sent July “rejected that tbe car 29, 1920, damaged bay. disposition.” account tbe Advise On day, plaintiff confirming same wrote a letter to telegram stating: tbe furthermore herewith “We you inspection covering beg your hand call car and specifies attention plainly to tbe fact our contract damaged bay no stained nor shall be loaded. Further- specifies more, the for Standard and No. Tim- *8 othy. your enclosing inspection We are certificate show- graded Timothy part car No. 3 tbe stained and dam- aged.” ours.) (Italics August On 1920, defendant 5, telegraphed plaintiff’s agent tbe car was that unsold and authority “awaiting your that defendant was to handle quick account. con- what to do.” Defendant Wire.us telegram day. firmed tbe letter on tbe next Plain- agent tiff’s refused to authorize defendant to sell tbe car- bay plaintiff’s stating load Belkbam, on to account, good “tbe car was under contract faith, in OCTOBER, TERM,
Walton Carlisle. paid up expected such.” it taken and I to be and Subsequently, hay, Au- on the car of and defendant sold repre- gust $72.52, a check mailed 20,1920, senting proceeds to ac- Plaintiff refused the sale. the net de- cept defendant, it back to tendered check, the trial posited the clerk of the court it with this action. controversy shipped to was
The second car of September 24, on or about defendant Kansas telegraphed plaintiff’s September defendant you “grades agent car three. No contract ours.) hay. disposition.” (Italics grade Advise telegram date. same On letter was confirmed agent a plaintiff’s September Belkham delivered to hay, payment of this car of on defendant draft drawn presentation. pay the draft refused defendant wrote 1920, defendant On October your today car of No. account “We have Timothy per ton.” at $13 was effect evidence
Plaintiff’s controversy on the two cars loaded good loaded condition, stained, but parties, by terms, its cars. The written contract grade require any specified delivery does not hay. at the offered demurrer to the evidence
Defendant refused trial trial, conclusion give. jury required find Instruction No.
Plaintiff’s making “after from the evidence and believe plaintiff evidence, introduced in written agreement modified the said oral T. E. Belkham place performance the time of tract toas you shipment, find and if further believe agent Belkham was the T. E. evidence that authority scope within the of his acting he was and that making de- modifications and that the said in thus agreement and modification the said oral fendant ratified *9 SUPREME COURT OP MISSOURI, agent, you he written contract of if find said his accepting ship- paying was such hay, you failing ment of if so in conduct find, complain object you or to said and if further modification, find and believe from the evidence shipped controversy pursuant the two in compliance in substantial mod- said contract as you and if ified, further find and evi- believe from the bay dence both the two said cars in troversy plaintiff, when loaded ’’ your plaintiff. then verdict shall be
Plaintiff’s Instruction No. was on the measure damages. Appellant assigns
I. overruling error his giving’ plaintiff’s demurrer to-the evidence and the in- respectively. structions numbered one two, ground assignment is that statement special bottomed written contract, whereas either that shows the two carloads in con-
troversy were under the written modified written Pleading Justice Court: ship- contract was rescinded before Special Suit on controversy Recovery ments were made. In Contract: upon Waiver. appellant other words, that, contends justice’s
while statement filed in the special court counts circuit jury, special instructed the written contract sued wholly disregarded ignored. support appellant In of his contention, leans McNeely (K. Cole v. Armour, 154 v. Carlisle C. A.), Roaring C. S. W. Fork Potato Growers v. App. Produce 193 Mo. 653; and Williams, Cockrell v. App. hold, which cases in effect, that a cannot sue contract and recover upon another and different or cause action. supra, originated However, the three cases last cited-, plead the circuit court, where the more technical rules of procedure apply. laid down the code of civil Be- TERM, 1925. Vol.
I Walton Carlisle. [ *10 total there was either a sides, cases, in each the cited of special disprove proof the tended to failure of or the contract, supra, an upon. Cole v. declared Armour, upon probate appeal court’s re- court taken the against a decedent’s a claim or fusal allow demand the circuit court cause reached the estate, and, petition, appeal, an amended filed therein the claimant counting upon special decedent. verbal contract with money developed had a cause of action The evidence qtmntum labor mendt and received or for work rightly performed, ruled and it was done and services up- petition having stand elected his amended that, upon a plaintiff could not recover on a wholly cause action. different of justice’s originated in a suit,
The instant however, by plaintiff the filing of statement the of-a court, constituting action which her suit the cause of facts 2735, Revised Statutes is founded. Section part provides: pleadings either formal “No justice’s required in a shall be. or any process any suit, shall issued be but before court, justice the instrument sued file with the shall the facts or of constitut- account, statement on, caus§ the suit is founded which only by court, repeatedly not ruled, It has been Appeals, technical Courts of the several originating applicable pleading to suits rules originating suits enforced circuit court should [Meyer justice’s Iba McCabe, 236; 73 Mo. v. court. in Eddy, 13; 21 Mo. Metz v. 469; 45 Mo. Co., v. Railroad App. Maness, Herrick v. 420; Mo. v. Guthrie, Walker Weinberg, App. v. S. W. 399; Tanhoff 142 Mo. Thompson 496.] & 213 S. W. Co., v. Chamberlain App. the test Mohan, In v. Jarrett justice’s is sufficiency court in the statement filed of a ‘‘ 32): (l. aptly c. J., who said law stated Geay, Missouri, well settled MISSOURI, SUPREME COURT OP Walton Carlisle. peace designed is a tribunal and intended parties may appear litigant, parties venience of in attorneys. and settle their lawsuits without the aid of Section 3852, [Sec. R. Revised Statutes 1899 S. provides required pleadings 1919], no>formal shall be always party; either final test has notify been: Is the statement sufficient to the defend- ant of the nature of the cause which he ‘sued, sufficient and definite to bar another action for the same subject-matter? [Hammond v. 123 W. S. Berkowitz, ap- uniformly 502.]” This test has been followed and plied. [Iba v. Railroad Tanhoff v. Wein- berg, 239 W. cases cited.] S. there
Applying foregoing the the we in instant suit, test plaintiff’s fully apprised think it clear is statement the nature of the cause for which he sufficiently sued and definite to bar another action subject-matter. plaintiff’s the same The statement of originally justice’s cause of filed in the action, court and upon which the cause was tried de the novo in circuit be court,'cannot said to have misled defendant the toas upon nature of the and he had been sued appellant, which he called to defend. The requesting plaintiff shipments to continue to the make remainder of the covered the written contract and by accepting paying six carloads of said and therefor price expira- the fixed the written after contract the ninety-day period tion of the therein rec- mentioned, ognized being and the contract treated as in then force applicable executory shipments made expiration ninety-day period. after ap- the In fact, pellant July (more in letter of his 29, 1920' than a month expiration period after the of the referred in the written contract declared in state- ment), giving respondent rejec- the the reason for the controversy, recognized tion of one of the the writ- being applicable shipment by ten to that stat- ing, beg your “We to call attention the fact that our TERM, j specifies plainly no stained nor shall loaded.” be any discrepancy the if there between
Moreover, allegata probata it case we believe bar, the than failure rather to mere variance total amounts proof. provides: Section Revised Statutes pleading allegation “No variance the between the actually material, shall be deemed unless it has maintaining party, prejudice, in misled the adverse to his al- be merits; his leged when it shall action or defense shall be has that fact misled, been so proved show- court, affidavit satisfaction thereupon ing respect he misled, in what been has pleading may such amended order just.” terms as shall be surprise,
Appellant show herein no affidavit of filed required by stat misled, he been wherein has provisions of Having ute. failed to avail himself complain in appellant be heard statute, will not appellate deemed but will be to have waived court, Realty Co., [Fisher variance. & Real Estate Co. Co. v. Mellor 581; Harrison 562; Lakenan, Mo. v. Ry., Ry. Joseph H. 455; v. 105 Mo. v. St. L. Co., Schneider & P. v. 261 S. W. 238 S. Bammert Kenefick, W. Co., App. 642.] Rundelman Boiler Works originally begun before suit is one fact peace application *12 affect of the does not supra.] [Rundelman above Boiler Works mile. Appellant urges sue II. next cannot bringing herself without first the written contract proof conditions, its and that the shows within terms and .upon com that she made no effort her provisions waiver: with the the contract ply appraisers. appointment of reference to the cwidSionf remarked, have we heretofore However, as provision was' waived that parties, appoint insisted neither ' SUPREME COURT OF MISSOURI, recognized ment of appraisers but con treated and tbe being executory expiration tract as in force and after tbe ninety-day period prescribed Appellant, tbe therein. by requesting plaintiff! shipments of to continue to make by accep the balance of covered ting paying hay shipped for six carloads of said by plaintiff expiration him after the of said period, deny will not be waiver con heard of the provision relating tract appraisers. selection hay shipped III. As to.the issue whether the in the controversy two damaged ears in was so that it did comply with the terms the written think we properly by plain that issue jury was submitted to-the tiff’s provides instruction numbered 1. Themontract t damaged hay hat is to be loaded.” Other instruction requirement, than said silent the contract is grade quality as to the to be loaded. Plain tiff’s was to the effect that the loaded on controversy damaged two was not stained, good loading condition, the time of cars. on the jury say, It was for the under Instruction controversy 1, whether the by plaintiff jury, by loaded on the cars. The their verdict, plaintiff. resolved that issue in favor We find no reversible error in us. the record before It follows that the nisi should affirmed, it Lindsay, so ordered. C., concurs. PER foregoing opinion by CURIAM:—The Seduon, hereby adopted
C., opinion court. All judges concur.