Gaar, Scott & Co. v. Hill , 113 Mo. App. 10 ( 1905 )

ELLISON, J.

— The present action is based on promissory notes executed by defendant to plaintiff for the purchase price of a threshing machine. The judgment in the trial court was for the defendant.

It appears from the evidence that plaintiff is a manufacturing company in Indiana and that it sold the machine to defendant through agents in the State of Iowa. That defendant afterwards removed to this State and hence was sued here. Defendant bought the machine late one evening. The agent filled out a contract on a printed blank in the usual form except that there was interlined that the machine should be on wide tire iron wheels. That was given to defendant and then, at the agent’s request, he signed a blank contract which the agent was to fill out like the one given him. But the agent failed to make the change calling for wide tire iron wheels and so when the machine came defendant discovered that it had narrow tire wooden wheels and refused to accept it. Whereupon, plaintiff’s agent gave him a written memoranda that he was “entitled to a set of separator wheels six inches wide, iron and return the ones he has.” Defendant thereupon took the machine and executed the notes sued on with chattel mortgage on the machine to secure payment. It appears that the iron wheels were never furnished and the machine proved unsatisfactory and was finally sold by plaintiff under the mortgage, and defendant is now sued on the notes.

In this state the rule that written contracts cannot be varied by parol has never been held to prevent inquiry into the consideration of such contract so as to show a full or partial failure of consideration. So, therefore, we reject all the objections urged here as to the court’s ruling on the admission of evidence. Under the pleadings in the cause it was defendant’s right to have a full hearing as to the purchase of the machine and of how the contracts, intended to be duplicates, above referred to were made; and, also, as to the subsequent memoranda agreement and how it came to be executed. And so we think there was ample evidence, in the absence of anything to the contrary, to show that George and Orean were agents of the plaintiff. There was no other inference to be drawn from the whole evidence.

Proceeding to the instructions, we find those offered by plaintiff were refused by the court and he gave two of his own motion in plaintiff’s behalf. Two were also given for the defendant. These instructions simplified the issues and clearly submitted to the jury the only questions properly in the case. That for plaintiff directed the jury to find for plaintiff if the written contract to which defendant’s name was attached, was made out and signed by defendant (that is, not signed in blank as above mentioned) then he had no right to refuse the machine because of the wooden tired wheels three and one-half inches wide. And that even though the contract was signed in blank to be filled out by plaintiff’s agent, but was afterwards filled out as agreed between tbe agent and defendant, tbe finding should be for plaintiff.

The first instruction given for defendant was practically the converse of that for plaintiff. The second directed the jury to find for defendant if they believed that the machine on arrival was equipped with narrow wooden wheels when by agreement it should have been equipped with broad iron wheels and for that reason was refused by defendant. And that thereupon plaintiff’s agent agreed with defendant that if he would take the machine and execute the notes herein that plaintiff would furnish such iron wheels, and that upon the faith of such promise defendant executed the notes, and that plaintiff then failed or refused to furnish the iron wheels, and that the machine so equipped with wooden wheels could not be moved from place to place in defendant’s neighborhood without great loss of time and expense, and that defendant’s business of threshing grain could not be carried on, then the jury might find that the consideration had failed.

There was evidence to support plaintiff’s view of the case, but as we regard the instructions as correct, Ave accept the verdict of the jury as binding upon us.

¡Judgment is affirmed.

All concur.