46 Mo. App. 282 | Mo. Ct. App. | 1891
The petition of the plaintiff alleged that the partnership relation existing between plaintiff and defendant was on October 12, 1886, dissolved, and that the defendant for a valuable consideration sold and assigned to plaintiff his interest in all notes and accounts due the- firm ; that among them was the note of one Bridges, secured by chattel mortgage for $168.45; that defendant, notwithstanding the said sale and assignment to plaintiff, collected said note and refused to pay over the same to plaintiff, etc. The answer of the defendant admitted,' first, the partnership and its dissolution ; second, the sale and assignment, and, third, the collection of the Bridges note, but denied, first, the sale of his interest in said note to plaintiff, and, second, claimed title thereto in himself. It will be seen that the issues thus made by the pleadings were, first, whether the Bridges note was included in the sale
In determining whether defendant is entitled to a reversal of the judgment on account of the action of the court in rejecting his offer of this evidence, - we are obliged to assume that he was able to prove what he offered to prove. Funk v. Gullware, 49 Conn. 124. The rule is elemental that parol evidence cannot be admitted to contradict or vary the terms of a written contract. Clark v. Diffenderfer, 31 Mo. App. 232. So the rule is well settled that oral testimony is inadmissible to vary the terms of a written contract which are clear, precise and unambiguous and embrace the entire
And so, too, it has been decided that, where a contract in writing purports to cover the entire transaction, evidence as to the terms of a prior oral contract is inadmissible. Railroad v. Cleary, 77 Mo. 634; Turner v. Railroad, 20 Mo. App. 632. Here it is alleged that the defendant sold to plaintiff ‘ ‘ all notes and accounts due the firm.” These terms are general, and are not specific. They do not expressly name the Bridges note. The question, therefore, is, would it be an infringement of these rules to admit parol evidence to ascertain whether the Bridges note' was included in the assignment. Mr. Greenleaf in his work on evidence, section 286, fourteenth edition, states it to be a leading rule in regard to written instruments, that, since they are to be interpreted according to their subject-matter, it is obvious that parol or verbal testimony must be resorted to in order to ascertain the nature and qualities of the subject to which the instrument refers.
Evidence which is calculated to explain the subject of instrument is essentially different in its character from evidence of verbal communications respecting it. Whatever, therefore, indicates the nature of the subject is a just medium of interpretation of the language and meaning of the parties in relation to it, and is also a just foundation for giving the instrument an interpretation, when considered relatively, different from that which it would receive if considered in the abstract. Thus, when certain premises were leased including a yard, described by metes and bounds, and the question was whether a cellar under the yard was or was not included in the lease, verbal evidence was held admissible to show that, at the time of the lease, the cellar was in the occupancy of another tenant, and, therefore, it could not hare been intended by the parties that it should pass by the lease. So, where a house or mill or factory is conveyed eo nomine, and the question is as to^
In this state the rule is stated to be, that the identity of the subject-matter of the contract not being definitely ascertained by its terms parol testimony is admissible to make it certain. Amonett v. Montague, 68 Mo. 201 ; Philibert v. Burch, 4 Mo. App. 470. From these authorities it is quite plain that the court erred in rejecting the defendant’s offer of evidence. The court should, under the issues, have received jcarol evidence tending to show that the Bridges note was not embraced in the general terms of the assignment. Or, in other words, that at the time of the assignment it was not a chose of the partnership, or that the plaintiff had previously made a valid sale and transfer of his interest in it to defendant. Any evidence tending to show that the interest of the partnership in it had been extinguished before the assignment was admissible.
As this case will be remanded for further trial, it may be proper to remark that the instruction given by the court was erroneous in that it ignored a material issue of fact made by the pleadings. It should have left it to the jury to find whether or not under the
The judgment is reversed and cause remanded.