140 Mo. App. 220 | Mo. Ct. App. | 1909
This case was first tried in tbe Jasper county circuit court. An appeal was taken to tbe Kansas City Court of Appeals, and from there tbe case was certified to this court on tbe 4th day of October, 1909.
In tbe Kansas City Court of Appeals, a motion was filed for leave to amend appellants’ abstract of record, statement and brief, tbe grounds alleged being that tbe attorney for appellants sent tbe abstract of record, statement and brief to appellants at Iowa City, Iowa, inserting appellants’ bill of exceptions, gave directions for printing, and that tbe printer who undertook tbe work, through mistake, wholly omitted and left out of the abstract of tbe record tbe bill of exceptions, of wbicb mistake appellants bad no knowledge until March 15, 1909, — then too late to comply with rule 15 of tbe Kansas City Court of Appeals by serving respond
The respondents, in answer to this motion for leave to amend, stated that the appellants were guilty of gross negligence in perfecting the appeal.
It does not appear what action, if any, the Nansas City Court of Appeals took on this motion.
Thereafter, this case was set for hearing in this court on November 4, 1909. On October 4, 1909, the appellants’ amended abstract and brief were filed in this court, and on November 4, 1909, the cause was submitted on the brief of the appellants. The respondents made no further appearance.
Prom the fact that the certification of the case to the Springfield Court of Appeals necessitated a new setting of the same, together with the other facts, we conclude that justice requires — in the absence of any further objection by the respondents — that the amended abstract and brief of appellants were filed in due time in this court, and the motion to strike out is accordingly overruled.
Statement. — This case is based on a contract in writing signed by the defendants, dated March 15, 1907, whereby the defendants purchased of the plaintiffs a quantity of jewelry valued at $120. The petition, filed January 4, 1908, recites that Nicholas Zellar, S. G-. Duley and Okie Zellar were partners, doing business under the name of the Rhode Island Manufacturing Company, and that they were manufacturers of and dealers in jewelry with offices in the city of Iowa City, Iowa, and in other places; that defendants, Maggie Ranson and iCleave Ranson, were partners, engaged in the general merchandise business under the firm name of M. Ranson & Son, at Neck City, in Jasper county, Missouri. That on the 15th day of March, 1907, the defendants ordered of plaintiffs, in writing, over the signature of M. Ranson & Son, signed by the
The defendants filed an answer consisting of a general denial and the special defense that at the time the order was taken, it was agreed between Maggie Ran-son and the plaintiffs’ soliciting agent, J. B. Weil, that the order was taken for the convenience of the said agent, and was by him to he held for the consent and approval of Cleave Ranson, a copartner, and the business manager of the firm of M. Ranson & Son, who, at the time, was out of the city, and the goods were not to be shipped until thirty days after plaintiffs had been notified by letter that the said Cleave Ranson had ratified said order and consented to the purchase of said
To this answer the plaintiffs filed a replication, being a general denial of all new matter set up in the answer.
The court, sitting as a jury, found the issues for the defendants. Plaintiffs filed the usual motions for a new trial and in arrest, and these being overruled, in due course perfected their .appeal.
At the trial, the factory order was offered in evidence which substantiated the material allegatibns in plaintiffs’ petition.
The deposition of S. G. Duley was produced by the plaintiffs, which is substantially as follows: He testified that he was the manager of the Rhode Island Manufacturing Company, a partnership composed of Nicholas Zellar, Okie Zellar and himself; that they are wholesalers of jewelry and novelties, and do business principally through solicitors or agents; that he had general charge of the business, directing the solicitors and accepting or rejecting all orders sent in by
The deposition of Frank Zellar was also offered in evidence. He stated that he was in charge of the stock department of the plaintiffs at the time this order was received; that the order was approved, and that the goods were packed and delivered to the express office directed to the defendants.
The deposition of J. B. Weil was offered in evidence by the plaintiffs. He stated that he took the order of Maggie Ranson for the goods described in plaintiffs’ petition; that he showed her the acceptances she would be expected to sign and told her where to sign them when the company sent the goods; that she said she liked the advertising arrangement in the contract very much. That he was a solicitor of goods on forms furnished by the company and had no authority to take orders except on these order blanks; that every arrangement between himself and the customer who signed the order had to be printed, written or interlined on the contract order, and all orders were sent subject to plaintiffs’ approval; that he had no authority to bind the company in any way except as appeared on the order blanks. That he showed Maggie Ranson the order Form BIO and explained all of its terms and conditions to her; that she said she liked the arrangement,
Maggie Ranson, for the defendants testified that she and her son, Cleave Ranson, composed the firm of M. Ranson & Son. Upon being asked to state the facts in regard to the order of goods sued on, the defendants objected to the introduction of any oral statements for the reason that the facts were all stated in the written contract which was already in evidence, and for the further • reason that it is stated in that contract that no outside or verbal agreement should be binding on either party, and for the further reason that in said contract it is stated that all terms, conditions and agreements between the defendants and the salesman appear on the contract. This objection was overruled and exception saved. She thereupon testified that she was very busy waiting on customers when the plaintiffs’ salesman came in, her son being away; that he attempted to read the contract to her every time she was not busy, and that when he asked her to sign it, she signed it not knowing what it was; “he read it to me himself.” That the understanding was the goods were not to be shipped for thirty days, and even not then unless Cleave Ran-son consented; that the order was to be held subject to countermand. That Cleave Ranson returned home and refused to approve the order, and that the goods arrived in three days. Her testimony is then substantially the same as that of the plaintiffs.
The defendants then offered in evidence Docket No. 1, November Term, 1907, page 6, in reference to the case of Nicholas Zellar et al. v. Maggie Ranson et al. The plaintiffs objected to the introduction of this docket entry because the docket showed that the words, “trial by court and judgment for defendants,” were stricken out so that the docket entry would read,— “Plaintiffs take nonsuit;” that the docket entry does
OPINION,
The written contract herein, upon which this suit arose, purports to be complete in itself, and the complete and final expression of the agreement made between the plaintiffs and the defendants. It is unambiguous'and unequivocal in its terms and conditions, and contained among other vital clauses, the following stipulation: “Please ship me the goods described below from your nearest distributing point on terms and conditions hereon and no others. No outside or verba] agreement shall be binding on either party. The undersigned acknowledges that the salesman is merely a soliciting agent, and that all terms, conditions and agreements between himself and the saleman appear hereon.”
The answer set up no grounds for cancelling this contract on account of fraud or deceit, but admitted its execution by the defendant; and, at the trial, the defendant, Maggie Ranson, over the objections and exceptions of the plaintiffs, was allowed to give evidence materially varying and changing the written contract in its essential conditions, supporting the allegations of her answer and setting up a new oral contract to the effect that at the time the goods were ordered and at the time she signed the order for the goods, another and different contract had been made that the goods were not to be shipped for thirty days after plaintiffs had been notified, and the other partner, Cleave Ranson, had consented to the purchase of such goods and ratified the order. It further appears that the goods were shipped pursuant to the order before the plaintiffs received any notice whatever that the defendants desired
Where a party signed a contract without reading it, which contract contained a warning in bold type not to sign without reading and a statement that agents were not authorized to change the conditions printed in it, he was not allowed afterwards to evade it on the ground that he did not read it but signed it, believing statements of an agent that it contained other stipulations than those it actually contained. When one is sued on a written contract, he cannot show that a verbal agreement made prior to the execution of the writing was engrafted upon the instrument. [International Text Book Co. v. Lewis, 130 Mo. App. 158.]
Unless some fraud is practiced to induce,a party to sign a contract, he cannot avoid the obligation of the contract by denying that he knew its contents or
No fraud having been pleaded by defendants in their answer, and the contract being clear and unambiguous, the defendants are bound by its express terms. [Leicher v. Keeney, 98 Mo. App. 394; Paris Manufacturing & Importing Co. v. Carle, 116 Mo. App. 581.]
To undertake to site all the cases in this and other states sustaining this principle would be as vain a proceeding as to attempt to count the stars in the milky way or the sands of the sea shore.
There being no conflicting evidence, and the order for the goods being in writing, and the evidence being uncontradicted as to the plaintiffs having complied with the order in the shipment of the goods, and there being no question as to the amount due under the written contract, plaintiffs’ declaration of law, directing a finding and judgment in plaintiffs’ favor, and directing the amount to which the plaintiffs were entitled, should have been given. [Taylor v. Felder, 59 S. E. 844.]
The evidence shows that in the case of Nicholas Zellar et al. v. Maggie Ranson et al., formerly instituted in the Jasper county circuit court, the plaintiffs took a voluntary nonsuit. This was not an adjudication or a bar to the institution of a new suit, and defendants’ plea of res adjudicada must fail. [Wiethaupt v. City of St. Louis, 158 Mo. 655; National Waterworks Co. v. School Dist. of Kansas City, 23 Mo. App. 227; Taylor
The judgment of the trial court is therefore reversed and the cause remanded with directions to enter judgment for plaintiffs for $120.