Wilson v. Wilson , 106 Mo. App. 501 ( 1904 )

BROADDUS, J.

The allegations of the petition are, that plaintiff at the special instance and request of defendant sold and delivered to defendant a certain stock of goods at an agreed price, that part payment had been made, and that a balance was still due. The answer was a general denial, coupled with an admission of the purchase of the goods and alleging payment. There was no admission that he purchased the goods at the alleged agreed price.

Plaintiff testified that he invoiced his stock of merchandise to defendant at the value of $7,246.77, and that he received in payment for the goods, cash and property to the amount of about $6,808, leaving defendant indebted to him in the sum of about $460. Defendant’s counsel asked plaintiff on cross-examination whether, on the date of the sale of the merchandise, he and plaintiff entered into a written contract for the sale of the goods. Plaintiff’s counsel objected to the question, which objection at the time was overruled; but after the contract was identified and partly read to the jury, the plaintiff’s counsel made the further objection that it was not competent for defendant to introduce it on cross-examination of the witness. At this point the court remarked, “I haven’t finally ruled that out. Cross-examine on other matters. ’ ’ The contract was not furtlier offered during the trial. That part read to the jury is as follows:

‘ ‘ Bucldin, Missouri, October 21, 1901.

“This agreement, made and entered into this day by and between Emmett L. "Wilson of Albany, Missouri, party of the first part, and G. B. Wilson, of Worth, Worth county, Missouri, party of the second part, witnesseth: That the party of the first part has this day sold to the party of the second part his farm of about 315 acres, known as the Cherry farm in sections 34 and 35, in Walnut Grove township, numbered 59, of range 15, of Macon county, Missouri, for the consideration of $10,500, and is to furnish clear abstract of title, excepting an encumbrance of $4,000 to be assumed by said second party.”

The defendant’s counsel on further cross-examination of plaintiff elicited the following facts in addition to what plaintiff had already stated, viz.: That plaintiff delivered the goods and shortly thereafter defendant delivered to plaintiff a deed to the land described in said writing, together with an abstract of the title, which latter showed that the encumbrance on the land w;as $4,410 instead of $4,000, or $410 in excess of the amount plaintiff assumed in the written contract. It was further shown that plaintiff at first objected to the deed mentioned conveying to him the land because of the excess in the amount of the encumbrance he had assumed, but that afterwards he did accept it, under protest, discharged the encumbrance, and sold the land. The evidence showed the agreed price of the goods, the consideration in money and the property received, and their delivery to the defendant. And it further shows that by reason of the excess of $410 of encumbrance on the land the defendant still owes plaintiff a balance for the goods.

" We think under the state of facts the plaintiff has properly brought his suit. “At common law, a party could sue in assumpsit to recover the stipulated price due on a special contract, where the contract had been fully executed and nothing remained to be done but the payment of the agreed price.” Williams v. Railway, 112 Mo. 491; Moore v. Mfg. Co., 113 Mo. 98.

The plaintiff insisted in the trial court, and still insists in this court, that it was not competent for defendant to introduce the written contract, and that he was not required to introduce it. He misconstrues the law, which in such cases, “does not repudiate the contract, nor seek to avoid it, but under his common count of quantum meruit, he offers the contract in order to sustain his case and his compliance with its terms.” Williams v. Railway, supra.

The respondent contends that there was a total failure of proof of the allegations of the petition; and that there was no proof of sale of the goods at the times mentioned in the petition, but, on the contrary, it appeared that the transaction was governed by an express written contract, which was not introduced in evidence by the plaintiff.

It is true that it was shown that there was such a contract and that it was not introduced in full in evidence, but only a part of it. But plaintiff, notwithstanding, was allowed to state the agreed price of the goods and the consideration therefor, and the payments of money and property, and the balance due. Of course, this, so far as it related to the terms of the contract, was not the best evidence, but it was admitted; and so long as it remained, the plaintiff was entitled to go to the jury, which right was denied him. ■

The written contract was not the foundation of the suit, it was only evidence of plaintiff’s demand. It is true, defendant, in the beginning, objected, to plaintiff stating the terms of the contract; but 'his objection was overruled and the evidence admitted. Before a submission of the case he should have moved the court to strike out such evidence, which if sustained would have left plaintiff without proof.

Reversed and remanded.

All concur.