Gaar-Scott & Co. v. Nelson , 166 Mo. App. 51 ( 1912 )

REYNOLDS, P. J.

(after stating the facts). — The principal part of this answering brief of respondents’ counsel is devoted to an attack upon the appeal and abstract. It is insisted in this part of the brief that we should dismiss or affirm for failure of appellant to file the transcript of the cause at the first term following the appeal, that transcript not having been filed until October 3rd, that being the first day of the October, 1910, term of our court. The appeal having been taken on the 4th of April, 1910, during the March term of the circuit court, and more than sixty days prior to our October term, the transcript was due to be filed under the provisions of sections 2047 and 2048, Revised Statutes 1909, to the October, 1910, term of our court, and should have been filed at least fifteen days prior to the beginning of that term. As will be seen by the statement which we have made of the facts attendant upon that, it was not filed fifteen, days before that term but filed on the first day of the term. It is provided by section 2047, of the Revised Statutes above cited, that “All appeals taken sixty days before the first day of the next term” of the appellate court “shall be returnable to such next term.” It is also there provided that if the appellant fails to file either a full transcript or in lieu thereof a certified copy of the record entry of the judgment, etc., the respondent “shall produce in court the certificate of the clerk of the court in which such appeal was granted, stating therein the title of the cause, the date and amount of the judgment appealed from, against whom the same was rendered, the name of the party in whose favor the appeal was granted and the time when the appeal was granted, such certificate shall be prima facie evidence of the matters therein stated, and shall be a sufficient basis for a motion in the appellate court to affirm the judgment so appealed from, and the court shall affirm the judgment, unless good cause to the contrary be shown. ’ ’ The respondents in this case have not complied with this provision of the statute. They are not entitled to invoke it, nor are they entitled to invoke the rule of our court made to conform to this law. So it was decided by our court in Banse v. Tate, 62 Mo. App. 150, a cause which is referred to approvingly by our Supreme Court in Ziefle v. Sied, 137 Mo. 538, l. c. 543, 38 S. W. 963. The statute was also so construed by the Kansas City Court of Appeals in Bombeck v. Bombeck, 18 Mo. App. 26. Over and above this, it is decided in these cases, particularly in Bombeck v. Bombeck, and in Ziefle v. Seid, that where respondent had lain by and suffered the appellant to go on with the appeal as if no such point was to be insisted upon, and had put the appellant to the cost and expense of preparing his full transcript and argument and brief,, printing and filing them, that respondent will not be heard to invoke the statute, his laches having led his adversary into an expense which could have been avoided if objection had been made in apt time. It is true that the rules of our court, as do those of the Supreme Court, provide as a penalty for failure to comply with the rules with respect to filing abstracts and briefs, that the cause shall be continued or the appeal may be dismissed at the option of respondent, but these rules are not so unalterable as to be beyond the exercise of discretion, which every court is often called upon to exercise — meaning always a wise and not merely arbitrary use of power, but discretion in its true meaning, which Black, in his Law Dictionary (2 Ed.), page 375, defines to be: “A liberty or privilege allowed to a judge, within the confines of right and justice, but independent of narrow and unbending rules of positive law, to decide and act in accordance with what is fair, equitable and wholesome, as determined upon thg peculiar circumstances of the case, and as discerned by his personal wisdom and experience, guided by the spirit, principles, and analogies of the law.” Possibly this is too broad, for it always to be understood that discretion must be exercised under the law. This court and the Supreme Court have always exercised their discretion in the •enforcement of rules, in an endeavor to do .justice, and to prevent miscarriage of justice which might follow ■ by insistence upon the strict requirements of rules- of practice. We hold that the case is properly before us by appeal.

Turning to the merits of the case, the principal grounds stated in the motion for new trial and now assigned here are to the error of the court in not sustaining plaintiff’s demurrer or, more properly, in refusing to give plaintiff’s peremptory instruction which we have set out. Error is also assigned to the admission and exclusion of testimony. We hold that these assignments are well made.

No parol evidence should have been admitted to explain or vary the terms of the warranty and of the contract accompanying it. Evidence of Mr. Brant in connection with the transaction in an attempt to show waiver by him should not have been admitted. Be‘fore defendants could invoke the warranty they should have shown compliance upon their part with the conditions, which are conditions precedent to be performed by defendants before any liability whatever attached to plaintiff. The performance of those conditions was essential to a defense against the contract, which depended upon the alleged breach of the warranty. [Nichols, Shepherd & Co. v. Larkin, 79 Mo. 264; Kingman & Co. v. Schulenberger, 64 Mo. App. 548; Nichols-Shepherd Co. v. Rhoadman, 112 Mo. App. 299, 87 S. W. 62; Jasper County Bank v. Barts, 130 Mo. App. 635, 109 S. W. 1057.] In the case at bar these defendants stipulated in writing and above their signatures, that they should give both the agent and the principal notice in writing by registered letter of the alleged defects in the machinery. The terms of the contract and warranty expressly bring home to defendants in this case notice that the principal in the contract is unwilling to be bound by notice to any agent local or otherwise, so that the provision for notice to the plaintiff having designated the' place, that is its home office, and within a specified time, that is six days after the receipt of the machinery, is an express provision of the contract which in the case at bar has not been complied with in any respect, save that notice seems to have been given to the agent but none whatever either by registered letter or otherwise to the principal. The substitution of notice to the agent without the consent of the principal was not in any respect whatever within the terms of the contract. [See cases above cited.] It is in evidence in the case at bar that these defendants not only did not avail themselves of the provisions and did not comply with the terms of the contract which they had deliberately entered into, but the correspondence as far as introduced in evidence, or as offered, so far from repudiating the machinery or turning it back or drawing out of the bargain for any cause, distinctly recog-, nizes the existence of the contract, the receipt of the machinery and asks for an extension of time for the payment of it. The defendant kept and used all this machinery through two or more seasons. These are estoppels against defendants from now refusing to pay for the machinery. [Nichols-Shepherd Co. v. Rhoadman, supra.]

It is said, however, that all of the letters between plaintiff’s agent and defendants which’ were introduced in evidence and the notes which were offered and introduced in evidence, as well as instructions which were asked on the part of defendants and given by the court, are not before us in the abstract and that therefore we cannot pass upon this phase of the case. Referring to the letters that were said to have been offered and are not in the abstract, it is sufficient to say of them that no matter what may have been in them, it affirmatively appears that this agent with whom this correspondence was carried on had no authority whatever from the principals to make any representations or waiver with respect to this machinery, so that what he said or wrote or what these defendants wrote or telegraphed to him was immaterial to the consideration of the case. The letters between plaintiff and these defendants are in evidence, and as before remarked, on the authority of Nichols-Shepherd Co. v. Rhoadman, supra, inasmuch as these letters distinctly carry out the idea of acceptance of the property by defendants and are negotiations for an extension of time of the payment, they estop defendants from now claiming a failure of consideration.

We are unable to say what instructions were asked and given or refused on the part of defendants, as neither party has brought them before us. We assume that if they are material to the decision of this case or would throw a different light upon it, that respondents, by supplemental abstract, prepared as provided by our rules and as required by section 2048, Revised Statutes 1909, would have brought them up. That section expressly provides that respondent or defendant in error, if dissatisfied with the abstract of appellant, may file an additional or supplemental abstract necessary to cure the defects in the abstract filed by the appellant or plaintiff in error. In the absence of such additional abstract we must assume that these omissions from the abstract of appellant are immaterial and relate to immaterial matters.

On consideration of the whole case and on the evidence that was in the case at this trial and as presented by the abstract, the instruction asked by appellant, plaintiff below, should have been given. That being given, no other instructions were necessary. The trial should have been conducted with reference to the admission and exclusion of evidence on the lines herein indicated,' that is to say, parol evidence cannot be introduced in the absence of charges of fraud, misrepresentation or mistake to contradict, vary or enlarge a written contract. The judgment of the circuit court is reversed and the cause remanded.

Nortoni and Caulfield, JJ., concur.