Dunn v. McClintock , 64 Mo. App. 193 ( 1895 )

Bond, J.

Plaintiff filed a statement before a justice embracing two causes of action: First, for goods sold and delivered and for work and labor performed; second, for the alleged breach by defendant of her contract with plaintiff to receive from him fifteen hundred bushels of corn at the price of twenty-five cents per bushel, such corn to be delivered on the farm of defendant, where plaintiff resided and of which he was the lessee. The defense was a general denial, and an averment that defendant only agreed to receive the said corn at said price upon the delivery of the whole thereof at her residence in Memphis, Missouri. Other allegations, not necessary to be set out, were contained in the answer making the above defenses. Plaintiff had judgment before the justice, and defendant appealed to the circuit court. After change of venue to Clark county, the cause was submitted to a jury, who returned a verdict for plaintiff on both counts, the verdict on the second count being for $75. From a judgment rendered for this sum the defendant appealed to this court.

On the trial the respondent introduced in evidence, in support of the cause of action averred in the second count, the following contract:

“Memphis, Mo., Oct. 2,1893.

“I have this day sold and contracted and delivered to H. E. McClintock on her farm, where I live, in Scotland county, Mo., one bay horse, one gray mare, and one roan mare, each three years old, for the sum of $185; also contracted and sold for delivery to her 1500 bushels of corn at 25 cents per bushel, about the 1st of January, A. D. 1894.

“J. J. Dunn,

“H. E. McOlintock.

“Per Gr, Y. M.”

Respondent testified, over the objection of appellant, that the place of delivery of the corn under the foregoing contract was agreed to be on the farm where respondent resided under a lease from appellant, and which was about seven miles from the place of residence of appellant in Memphis, Missouri. The objection interposed to this evidence was that the contract, supra, was one required to be in writing under the statute of frauds; that it was silent as to any place for the delivery of the corn sold thereunder; that the testimony in question tended to show an agreement between the parties fixing a particular place for the delivery of the corn; and that, if this testimony was true, such place of delivery was an essential part of the contract between the parties and could not be shown by oral evidence.

The defense of the statute of frauds under the last controlling decision of the supreme court can be raised by objection to oral evidence under a plea of the general issue. Boyd v. Paul, 125 Mo. 9. The objection in question specifically alleged it as the ground of the inadmissibility of the testimony. The overruling of this objection was not error. It is not necessary, to validate a written contract of sale under the statute of frauds, that the parties thereto should make and express in writing an agreement for any place of delivery of the goods sold, since in such case the law will intend that the delivery is to be within a reasonable time at the vendor’s customary place. Smith v. Shell, 82 Mo. 215. Hence this contract was complete as it is expressed, and the testimony objected to, being in accord with the presumption drawn by law from the silence of the contract as to the place of delivery, did not tend to supply any of the terms of the contract and was not obnoxious to the rule that contracts, required by law to be in writing, can not be pieced out by oral evidence. Ringer v. Holtzclaw, 112 Mo. 519; Weil v. Willard, 55 Mo. App. 376; Brown on Statute of Frauds, section 384.

Finding no reversible error in tbe judgment, it will be affirmed.

All concur.