165 Mo. App. 511 | Mo. Ct. App. | 1912
Action begun before a justice of tbe peace upon an alleged subscription by defendant of $200 for tbe erection and furnishing of a suitable T. M. C. A. building and maintenance of the work. Judgment for plaintiff by default in the justice court for. $200. Appealed to the circuit court by defendant where upon trial de novo by the court, a jury being waived, judgment again went in plaintiff’s favor and defendant has appealed.
When the suit was begun in the justice court, the plaintiff filed a written statement of its cause of action and with it a verified copy of the subscription card signed by defendant but did not file the subscription card itself. When the case reached the circuit court, the defendant filed a motion to dismiss the cause upon the ground that the instrument sued on was not filed before the justice of the peace and for that reason the justice acquired no jurisdiction and hence the circuit court had no jurisdiction on appeal to try the case. This motion was overruled. Plaintiff then filed in the circuit court the instrument sued upon. Defendant then filed a motion to strike this instrument from the files. This motion was also overruled and the trial then proceeded.
Appellant’s first contention is that the court erred in overruling his motion to dismiss based upon the ground that the instrument sued upon was not filed before the justice and therefore jurisdiction was not acquired. This position is not tenable. The failure to file the instrument sued on is not jurisdictional and the instrument may be filed after appeal and before trial- in the circuit court. [Keys & Watkins Livery Co. v. Freber, 102 Mo. App. 315, 91 S. W. 1003.]
It is contended that the subscription card signed by defendant is not sufficient to bind him. It is as follows:
I hereby pledge the sum of tho hundred dollars for the purpose of erecting and furnishing a suitable building for Y. M. C. A. purposes and the maintenance of the work. Payable as follows: 25% July 1, 1908; 25% October 1, 1908; 25% January 1, 1909; and 25% April 1, 1909.
Name-S. O. Morrow.”-
The objections against its sufficiency are that it does not name a payee; that it does not state when or where the Y. M. C. A. building is to be built and that it specifies no amount to be paid. While a written contract cannot be contradicted by parol, yet, when it is incomplete or ambiguous, its construction may- be aided by proof of the circumstances surrounding its execution and the purpose for which it was executed. It appears from the evidence that at a tent meeting in Carthage when there was a large crowd present, subscriptions were taken for the purpose of raising money to build a Y. M; C. A. building in Carthage. This subscription was taken by placing parties in the aisles throughout the tent with cards similar to the one signed by defendant with the amount of the subscription and the signature left blank. The subscriber would take a card, fill in the amount he wished to subscribe, then sign the card and pass it to a collector in the aisle and he would call out the name of the subscriber and the amount of his subscription. Defendant was sitting near the aisle and his subscription was taken in this way and called out as being for $200. A large number of other subscriptions were taken at the same meeting in the same way. This testimony makes it clear that defendant understood he was pledging money to erect a Y. M. C. A. building in Carthage.
The subscription card does not name a payee but the Y. M. C. A. of Carthage is incorporated and on the faith of this subscription and others amounting in all
As to the amount of the defendant’s subscription, the collector to whom the card was given by defendant testified that he calléd it out at the time as $200 and that defendant was sitting two or three or not more than five feet from the aisle at the time. Defendant testified that he filled out and signed the card but could not tell .how it was that he wrote ‘ ‘ Tho ’ ’ before the word hundred but insisted that he did not intend to write “Two.” He thought he had first intended to subscribe a different amount, but what amount he could not tell, and changed his mind before finishing it and that he never completed it for the amount he thought he would sign for. He did not remember hearing his subscription announced. On cross-examination, he admitted that he wrote the word “Hundred,” also “Tho” but could not tell which he wrote first nor give any satisfactory explanation of how “Tho” came to be written in. About all he could say about it was that he commenced to write something then changed his mind and the card went in without ever being finished. "We think there was evidence sufficient to support the finding of the trial court that the subscription was for $200 and his finding is binding upon us. Judgment affirmed.
