154 Mo. App. 728 | Mo. Ct. App. | 1911
This was a suit on a promissory note for the principal sum of $549.32, executed by defendant (Mischke) to plaintiff (Welch) for the purchase price of a stave saw and appurtenances, the plaintiff retaining a vendor’s lien on said machinery in the language usually employed in the creation of such liens. Plaintiff prayed for judgment on the note in the sum of $724.40 (principal and interest), for the enforcement of the lien and for the sale of the property to satisfy said judgment and costs.
Defendant, for answer, admitted the execution of the note, but set up as an affirmative defense that according to the terms of a new contract between plaintiff and defendant, made after the execution of the note, defendant was relieved from the payment of the note by the manufacture and sale to plaintiff of 500,000 white oak staves, including those already made by defendant for plaintiff after the execution of the note but before the making of the second contract, and by the return of the machinery to the plaintiff. Defendant pleaded an offer to surrender the machinery, and a demand for the note, alleging his compliance with the terms of said second contract. Defendant also pleaded a counterclaim in the sum of $343 as a balance due him on account of staves sold plaintiff, alleging that he had sold plaintiff 514,500 staves and had been paid for but 490,000.
Plaintiff’s reply was a general denial and a plea of lack of consideration to support the alleged second contract.
The lien feature was eliminated from the case and the cause was tried as a suit on a promissory note, with defendant urging his affirmative defense. The jury found for the defendant on the note and for plaintiff on the counterclaim. Plaintiff has appealed.
The evidence shows that on April 15, 1902, the defendant executed his promissory note for $549.32 as the purchase price of a stave saw and appurtenances, the.
By letter of October 3, 1903, from plaintiff to defendant, it appears that plaintiff had allowed defendant $13 per 1000 instead of $12.50 for all staves shipped up to that time, and in this letter plaintiff agreed to increase it to $14 per 1000.
By letter dated September 12, 1904, from plaintiff to defendant, it appears that defendant had been to St. Louis to see plaintiff and that a new contract had there been made. The reference to such contract' in this letter is as follows: “In regard to making staves,, when you were here I told you if you would make 500,-000, I would deliver the note back to you and take the machinery off your hands, which I consider very fair
Defendant testified: “Q. Mr. Mischke, when you were in St. Louis you say that you had an agreement with Mr. Welch that if you would make 500,000 staves the note would he surrendered to you. Now I will ask you if that agreement was to include the staves already made? A. That is what I understood.”
By letter dated August 27, 1901, from plaintiff to defendant, the following appears.: “When you were here in St. Louis I agreed to take the machinery back, provided you could cut 500,000 No, 1 staves, and since you were here you have made very little effort to get out the staves, and I will say to you that unless you cut the 500,000 staves, I shall expect you to pay for the machinery. If you do not cut staves faster, I shall have to send the notes over for collection. You say you are after 320 acres of timber, and if you get it it ought to make the 500,000 staves. In regard to sending you more money, T want to hear from you as to what you expect to do, and if you want to do the right thing, I will do everything that I agreed to, to help you out.”
T. H. Wiseman for the plaintiff testified that he and plaintiff manufacture staves together and that it is his business to go around and look after the factories and inspect the stock.. That he was present in St. Louis in 1901 when defendant was there to see plaintiff; that defendant “wanted to have his note returned — the note he had given for the machinery — and Mr. Welch told defendant he would not return it, but he said, ‘If you will get me 500,000 No. 1, 31 inch staves, and deliver them to me on the yard at Dillard, I will pay you the price I am now paying you for them and surrender your note.’ We were to take back the machinery.”
Appellant contends that his peremptory instruction should have been given for the reason that the burden of proving t'he discharge of the indebtedness was upon the defendant- — the party alleging the discharge — and that there was no-«evidence showing that defendant furnished 500,000 No. 1 staves according to his contract.
During the early part of the trial nisi counsel agreed “that defendant shipped to plaintiff 447,560 No. 1 staves and 86,070 No. 2 staves and the same were accepted by plaintiff; this agreement means the above number by count and not by measurement.” Defendant testified that plaintiff while at defendants mill told defendant he would take two No. 2 staves for one No. 1. Taking defendant’s view of the second contract — that the 500,000 staves meant 500,000 including those already shipped up to that time — and adding- to 447,560. one-half of 86,070, we find only the equivalent of 490,-590 No. 1 staves. It will be remembered that in the first contract (of February 3, 1902) the agreement was that
We think there was enough evidence on this issue to authorize the submission of the case to the jury. The case was submitted — as to this issue — on instructions substantially as follows: For the plaintiff the jury was told that if defendant delivered staves to plaintiff during the years 1902, 1903, 1904, 1905, 1906 and 1907, and plaintiff accepted them and paid defendant the contract price, and according to defendant’s own count, then it was the duty of the defendant, if he desired to make a claim against the plaintiff on account of the staves running wider than the average width (4 1-2 inches) provided in the contract, to notify plaintiff within a rea
“We, the jury, find the issues on the counterclaim for the plaintiff, that he does not owe the defendant anything on account of the staves averaging over 4 1-2 inches.”
“We, the jury, find the issues for the defendant on the note that plaintiff agreed to take the machinery in payment of same if defendant delivered to him 500,000 staves under the contract and that defendant complied with said contract and that the note is satisfied thereby.”
Appellant contends that these two verdicts are inconsistent one with the other. The trouble with appellant’s contention is that it stands upon the untrue hypothesis that the instructions given concerning the recovery of the excccs as set up in the counterclaim should apply generally to all the issues and limit the jury so that they could not add whatever excess they found there was on the 490,590 staves actually furnished in order to make out the 500,000 staves, the number defendant agreed to furnish before his note would be surrendered. These instructions referred only to the
Appellant complaiiis of the action of the trial court in admitting the evidence as to the terms of the agreement between plaintiff and defendant to the effect that two No. 2 staves would be taken as one No. 1 and paid for accordingly. This objection is based on the ground that there is nothing- in the pleadings to support it. It is alleged in the pleadings that defendant agreed to and did furnish a certain number of staves- under and by virtue of their contract, and that contract, as modified and acted upon by both parties, was tha,t two No. 2 staves would be accepted in place of one No. 1 and the evidence tended to show that they were so paid for. The jury has found that this was the contract. The meaning of this language is to be interpreted bv the understanding of the parties as shown by their actions and dealings. Where parties to a contract have given its terms a particular construction, such construction will generally be adopted by the court in giving effect to its provisions. .[9 Cyc. 588; The St. Joseph Union Depot Co. v. Railway, 131 Mo. 291, 31 S. W. 908; Meyer v. Christopher, 176 Mo. 580, 75 S. W. 750.] We therefore find that no error was committed in the admission of this evidence.
A thorough examination of this record convinces us that the result reached by the jury was entirely fair and just to both parties, that the judgment was for the right party, and should be affirmed. It is accordingly so ordered.