Zerr v. Klug , 1906 Mo. App. LEXIS 471 ( 1906 )

GOODE, J.

(after stating the facts). — A more ambiguous writing than the document called a receipt, but Avhich is an agreement too, hardly could be found. The length of time the note was to run, the interest it should hear and other matters, are not stated. The memorandum reveals on its face some outside arrangement to which it refers and, to be understood correctly, needed the help of extrinsic testimony. As this testimony was contradictory, an issue naturally arose for the jury’s determination. But respondent took the position in objecting to appellant’s testimony regarding the note, that the matter was for the court. In accordance with this contention the court, in the fifth instruction above quoted, appears to have taken the receipt to mean the note was to be executed and delivered by Klug on demand instead of on October 1st, as respondent agreed. 'The document does not so clearly declare when the note should be given as to shut out explanatory testimony. But as respondent insisted to the contrary and induced the court to accept that view, he must abide the result, as the receipt will bear the meaning the court gave it as well as the one for which respondent contended. [Lee v. Hassett, 39 Mo. App. 67.] The one issue in the case for the jury to decide, in order to determine the plea in abatement, was whether or not the property was to be paid for on delivery. This issue was submitted in an instruction given for appellant and two instructions given for respondent; one propounding the theory that if part of the purchase money Avas not to be paid until the stock of goods was inventoried and its value ascertained, the Arerdict must be for respondent; the other the theory that if part of the price Avas to be paid at the close of the World’s Fair, the verdict should be for respondent. The same issue of whether the property was to' be paid for on delivery was submitted in two instructions' given by the court on its OAvn motion, namely; the fourth and fifth. In the fourth instruction the jury were expressly told the verdict could not be for appellant unless it Avas found from the evidence Klug was to pay on delivery of the property by the terms of the original agreement. As the jury found the issue for appellant under those instructions, they must have found the contract of sale provided for payment by Klug Avlien he received the property. This was the vital question and respondent had instructions submitting it in the íavo aspects he asked to be presented.

One of defendant’s contentions is that even if the contract of sale provided for a cash payment on delivery of the property, this term Avas changed on April 12th, and the matter thereafter stood on an agreement by Zerr to wait until October 1st and then accept Klug’s note for the balance. Such an arrangement, if made, was unsupported by any consideration, there being no dispute between the parties about the indebtedness. [Garnier v. Papin, 30 Mo. 243; Wilson v. Russler, 91 Mo. App. 275; Montgomery Co. v. Auchley, 92 Mo. 126, 4 S. W. 410.] Klug parted with nothing and appellant received nothing as an inducement to substitute for the original agreement, a new one postponing the maturity of the debt to a certain time and then take .a note for it. Though Zerr agreed to wait for such a note, the memorandum does not show Klug bound himself to give one; though, no doubt, Zerr’s agreement to wait longer for his money would have been enough to support the substituted agreement as against Klug. But what was. there to uphold it against Zerr? What did he get or Klug lose? The case of Wimp v. Early, 104 Mo. App. 85, 78 S. W. 343, is not authority for the proposition that the first agreement could be set aside without a consideration. That case presented the question of the waiver of a landlord’s lien which, it was decided, certain precedents allowed to be done without a consideration; just as a party may waive other statutory rights; such as a defense based on the statutes of frauds or limitations. As to the non-necessity of a consideration to support a waiver, see Schmidt v. Ins. Co., 2 Mo. App. 339. If the contract of April 12th, made after the first one had been executed fully by appellant, was intended to supplant the first one in respect of his right to cash payment, a consideration was essential to its validity. The contents of the receipt were relevant, not to supersede the original agreement, but as a bit of evidence tending, in some degree, to show what payment was stipulated in the original agreement. As evidence on this point it was for the jury to weigh and we think respondent led the court into error in interpreting its legal effect to be that Klug was to give a note on demand. That treatment of the receipt by the court tended to influence tbe jury to find the sale was for cash. However, as said above, respondent cannot take advantage of this error which he induced.

In so far as the refused instructions were, correct, they were covered by those given.

The judgment is reversed and the cause remanded with directions to the court to set aside the order granting a new trial and enter judgment on the verdict of the jury.

All concur.