Abney v. Marshall , 124 Mo. App. 483 ( 1907 )

BLAND* P. J.

(after stating the facts). — James Marshall, the defendant, .and Lige Warren, in 1901, owned and operated a sawmill in Scott county, Missouri. Marshall owned teams and log wagons, which were used for the purpose of hauling saw logs to the mill. Plaintiff was employed by the firm, of Marshall and Warren to drive one of the teams. His evidence tends to show that on November-18, 1901, he entered into a contract with Marshall and Warren for the purchase of eight head of oxen, one log wagon, with chains, and seventeen head of hogs, at the price and sum of eight hundred dollars,! to be paid in sixteen months, in monthly installments of. fifty dollars,, to be earned by plaintiff in hauling logs to the mill; that in pursuance of the contract, plaintiff, on November twenty-first, executed and delivered to Marshall his promissory note for eight hundred dollars, payable in sixteen months, in monthly installments of fifty dollars per month, and secured said note by chattel mortgage on the property purchased. The mortgages contain a clause prohibiting plaintiff from removing the property from Scott county, and provided that a removal of the same from the. county should, at the election Of Marshall, work a forfeiture. It appears by the bill of exceptions that the mortgage was read in evidence but ijfc was not copied in the bill or abstracted in the printed abstracts. It also appears that Marshall had lost or mislaid the noté and it was not produced in evidence, and there is no evidence whatever of. its contents, nor of the contents of the chattel mortgage, other than stated above. Plaintiff and his witness Shelton, who was pres* ent at the time the trade was made, swore positively that the contract was as above stated, and. that the installments of fifty dollars were to be paid by plaintiff by hauling logs to the mill; and the evidence all shows that monthly credits were given on the note, from month to month, for hauling, the credits aggregated $213; and we think it can be read between the lines of Marshall’s testimony, that the note was to be paid in the manner sworn to by plaintiff and his witness, provided Marshall did not sell the mill within the sixteen months. In the absence of the note itself, or any proof of its contents; the presumption should be indulged, that the contract, as agreed upon verbally prior to the execution of the note, was substantially incorporated in the latter. It is more reasonable and equitable to presume that the contract was expressed in writing than it is to assume that an important element of it was omitted, and that the note was in the ordinary form. This view of the case disposes-, of defendant’s objection to the oral evidence of the contract on the ground it contradicted or varied the terms of the written contract as' evidenced by the note and mortgage.

Marshall acquired Warren’s interest in the mill and subsequently (April, 1902) sold the mill to a corporation. Plaintiff could not make satisfactory terms with the new owner of the mill, to haul logs for it, and was thrown out of employment for both himself and team. In this situation, plaintiff looked elsewhere for work and found that he could get a job of hauling, at satisfactory terms, at a mill in New Madrid county, and at another in Stoddard county, the latter being about nine miles from his home in Scott county; and his testimony tends to show that he communicated these facts to defendant and the latter gave plaintiff permission to take the team to either mill for the purpose of getting work, and. about May first, plaintiff drove the team to the mill in Stod,dard county for the purpose of «hauling logs, hut on the succeeding day defendant caused plaintiff’s arrest, took the oxen, wagon and chains from, him, and took them hack to Scott county, where he sold them under the mortgage for four hundred dollars. Defendant’s evidence tends to show that he not only refused to give his consent to the removal of the property from Scott county, but expressly forbade plaintiff to remove it. There is no evidence that plaintiff sold any of the hogs without defendant’s consent, and it tends to show that defendant got the proceeds of all the hogs sold by plaintiff.

The court gave the following instruction for plaintiff:

“1. The court instructs you that if you believe from the evidence that the firm of Marshall & Warren employed the plaintiff to haul logs for them till he should pay for a team of oxen and wagon and hogs according to the note given therefor for $800, to be paid $50 per month in hauling, and shall further believe from the evidence that said plaintiff did haul for them for five months and did make these monthly payments as per contract, when Marshall refused to furnish him work, and if you believe plaintiff went to Stoddard county to haul in order to make his payments and that he went Avith Marshall’s consent, and further believe that Marshall took said property from him, after refusing to) furnish him work, then you will find the issues for plaintiff and assess his damage at such sum as you may believe he is damaged, not to exceed the amount sued for.”

And the following for defendant:

“2. The court instructs the jury that if you believe and find from the evidence that the chattel mortgage offered in evidence covered the property In suit, and that it provided that a removal of the property from Scott county Avithout the consent of the mortgagee should work a forfeiture of the mortgage, and you further find from the evidence that plaintiff did, without such consent, move the property out of Scott county, then the defendant had a right to seize and sell said property and your verdict will be for defendant.”

And refused an instruction asked by defendant, to the effect that the jury should disregard all the oral testimony in respect to the contract. The verdict and judgment were in plaintiff’s favor.

It will be seen by the instructions asked and given, that the issues in the case were narrowed down to one, <to-wit, whether or not defendant gave his consent to plaintiff for the removal of the team to Stoddard county, for the purpose of finding work. There was substantial evidence tending to show that defendant gave his consent, and we can discover no valid reason in the record for disturbing the verdict.

The judgment is affirmed.

All concur.