Boggs v. Pacific Steam Laundry Co.

86 Mo. App. 616, 1901 Mo. App. LEXIS 223

Opinions

BOND, J.

The petition in this case recites that the plaintiff lost his arm from the use of machinery while in the service of defendant; that five days thereafter the following agreement was entered into by plaintiff and the defendant, to-wit:

“Whereas, Howard Boggs of the city of St. Louis, while in the employment of the Pacific Steam Laundry, a corporation of the State of Missouri, did at the laundry, of said company, No. 515 Elm street in said city, on the eighth day of December, 1888, lose his hand and a part of his arm by his careless and negligent use of a wringer, of which he had full charge and control; and, whereas, said Boggs does by these' presents confess his negligence aforesaid, and that said accident was due entirely to his own fault, and not in any degree to the fault of said company, or of its machinery, or other servants; now, in consideration of the premises, and of the agreement of Said Howard Boggs, hereinafter set forth, and his former faithfulness in the discharge of the duties committed to him, the said company does hereby agree to pay said Boggs his wages for a period of two months, notwithstanding his incapacity to work, that is, the sum of $10 per week for two months from and after the eighth day of December, aforesaid, and thereafter to give him employment suitable to his condition for such time and at such wages as maybe agreeable to said company; it being distinctly understood by said Boggs that the above understanding with said company does not involve a confession of any liability whatever of said company to him on account of the accident aforesaid, which accident is hereby confessed to have been due to his own carelessness, and to nothing else. - It is further understood that nothing herein shall be construed to require said company to retain said Boggs in its employment longer than it may please them to so retain him from and after the expiration of the two months aforesaid.

“And the said Howard Boggs, in consideration of the premises and of the promise of said company, does hereby release said company from any further claim or demand, whether of right or not, against said company on account of the accident and injuries aforesaid, or of any injuries resulting therefrom, and freely and voluntarily confesses that said accident was due to his own carelessness, and in no degree or manner whatsoever to the negligence or default of said company.

“In witness whereof the parties aforesaid have hereunto set their hands and seals this thirteenth day of December, 1888.

(Signed) “Howrard Boggs (his mark). (Seal)

i “Pacific Steam Laundry Co. (Seal)

* The undersigned witness that the foregoing- agreement was freely and voluntarily signed by Howard Boggs and said company, and that said Boggs was able to sign the same and to understand the contents.thereof, which were read to him.

(Signed) “0. B. Wickes,

“Mrs. Eliza B. Lewis,

“Henry Griffin.”

The petition alleges that plaintiff retained possession of said agreement until the ninth day of April, 1889, when he delivered it to the defendant upon an oral agreement then made between plaintiff and defendant, which, and the breach thereof, the petition alleges in the following terms, to-wit: “That defendant would pay plaintiff the sum of two hundred dollars and as an additional consideration, would agree to give plaintiff employment for life at the rate of ten dollars per week, providing he would deliver up the aforesaid release to them, and enter into their employment for life, and not bring any suit for the damages he had sustained by reason of his injury while in their employ on the eighth day of December, 1888.

“Plaintiff states that he accepted the proposition made by the defendant, through Wickes, its agent and superintendent, and acting within the scope of his authority, as aforesaid, and tli at thereupon defendant, by Wickes, its agent aforesaid, paid him two hundred ($200) dollars, and on said ninth day of April, 1889, plaintiff entered the service of defendant under the terms of the contract made by the defendant through Wickes, its agent and superintendent, acting within the scope of his authority, as aforesaid, and that in all things he faithfully complied with the terms of said contract on his part under the direction of the superintendent and general manager of defendant; and plaintiff further states that on said ninth day of April, 1889, he was assigned by said Wickes, agent and superintendent as aforesaid, to the duties as a washer in defendant’s said employ, and continued in such capacity for about two years thereafter, when defendant,- acting through its manager and general superintendent changed the duties of said plaintiff from washer to that of night watchman, and that he continued in the latter capacity, always faithfully complying with the terms of the contract on his part, until on or about the seventh day of August, 1897, when he was wrongfully discharged by defendant, and since said time defendant has refused to give him any employment whatever or pay him the sum of $10 per week or any part of said sum.”

The prayer of the petition was for judgment for the amount which should be due on the day of trial calculated at the rate - of $10 per week from the time of plaintiffs discharge, less any sum plaintiff might be able to earn in the interim.

The answer admitted the employment of the plaintiff from April, 1889, until August, 1897, which it alleged was under the written agreement recited in plaintiff’s petition and not otherwise, and denied the other allegations of the petition.

On the trial, plaintiff gave evidence which tended to prove the making by defendant of the oral contract as set forth in the petition. To the testimony of the plaintiff detailing such evidence, both in his examination in chief and in his cross-examination, no objection was interposed by counsel for defendant. After the re-examination of the plaintiff and following an offer in evidence by his counsel of some entries on the file cover of the petition, counsel for defendant moved the court that all the evidence given by plaintiff of his oral contract with the representative of defendant “be now ruled out,” stating that the objection could not be made earlier on account of vagueness in the testimony of the witness as to the date and sameness of the contract recited in the petition with the one delivered to defendant when the contract sued upon was made. The record shows that this motion and one of similar import, made after the examination of plaintiff’s wife, were considered by the court, and by the court overruled. We have not been able to find in the record that counsel for defendant interposed any exception at the time or subse quently to -this adverse ruling of the court, other than his complaint in the motion for new trial of the admission of incompetent evidence, and the failure to withdraw the same from the jury by refusing an instruction to that effect. The evidence tended to show that at the time of the alleged formation of the oral agreement between plaintiff.and defendant, to-wit, April, 1889, defendant paid plaintiff $200 in cash and subsequently employed him at the rate of $10 per week, and discharged him without cause in August, 1897. There was a verdict for plaintiff in the sum of $625, and the award by the court of a new trial, on the ground of error in refusing two instructions requested by defendant, the first being a demurrer to the evidence, and the second being, to-wit:

“The court instructs the jury that the law will now permit a person to show by oral evidence that a written contract was delivered upon a different contractual consideration from the one upon which it purports to have been made: That the consideration recited in the contract bearing date December 13, 1888, and offered in evidence are contractual and the plaintiff can not show, orally, a different consideration or a different employment of him by the defendant than the one shown in said contract.”

Plaintiff duly excepted to the award of a new trial, and appealed therefrom to this court.

1. The oral contract for employment during his life at a stipulated wage, set forth in plaintiff’s petition, and. for breach of which this action is brought, is not by its terms one required to be in writing under the provisions of the st atute of frauds that, all contracts not to be performed within one year shall be expressed in writing, for according to the terms of the alleged oral contract it would have been performed in one year if the plaintiff had died within that period after its formation, and it is only to contracts, the time of whose performance must extend beyond one year from their date, that the statute applies. Harrington v. K. C. Cable Railway Company, 60 Mo. App. 223; Winters v. Cherry, 78 Mo. 344. The contract in question, therefore, does not belong to the class which are required by law to be embodied in a writing, hence if validly* entered into, although resting entirely in parol, it may. well sustain a recovery for its breach. It follows that the validity of the oral contract, made as shown by the record, is the controlling question presented by the appeal from the order of the court .setting aside the verdict recovered for its breach. To sup■port this ruling counsel for respondent invokes the familiar principle, that a completed written contract is the final repository of all prior or contemporaneous contractual agreements of the parties of a verbal or oral nature, whether relating to its consideration, or any other essential element of the written agreement. Jackson v. Railway, 54 Mo. App. 644, and cases cited. Of course this rule does not, except in cases where the law imperatively demands the contract to be in writing (as under the statute of frauds), forbid evidence of omitted oral stipulations consistent with those expressed in an incomplete written contract, nor evidence of a subsequent oral contract resting upon a sufficient consideration, which either modifies, substitutes or extinguishes the previous written contract of the parties. Ringer v. Holtzclaw, 112 Mo. l. c. 523 ; Weil v. Willard, 55 Mo. App. l. c. 378. The facts in this case take it out of the application of the rule relied upon to support the action of the trial court for two reasons: , Eirst, the contractual colloquy between the parties evidencing the time, the consideration, nature and circumstances of the oral agreement- was testified to in the whole and all of its component parts by plaintiff during his examination in chief and cross-examination, without any objection interposed at the time to the questions and answers .eliciting the elements of the oral agreement. The motion to “rule out” this oral testimony subsequently made by respondent was not timely under this state of the record; but even if it had been seasonable, respondent waived the benefit thereof by not also excepting at the time to the adverse ruling of the court on his motion to “rule out” the oral testimony. It follows that the- trial judge was justified in the refusal of the instruction, supra,even if the evidence referred to therein had been open to timely objection, and his action in so doing would have been necessarily affirmed on appeal under the settled rule, that rulings on evidence or other matters of exception, 'to be reviewable on appeal, must have been excepted to when announced, and are not saved by mere subsequent attacks, by instruction or in the motion for new trial. Maxwell v. Railway, 85 Mo. l. c. 96; State v. Hope, 100 Mo. l. c. 353; Hickman v. Green, 123 Mo. l. c. 172; Ecton v. Railway, 56 Mo. App. 337; Crabtree v. Vanhoosier, 53 Mo. App. 405; Smith v. Dunklin County, 83 Mo. l. c. 196; Griffith v. Hanks, 91 Mo. 116; Bray v. Kremp, 113 Mo. 552; Pearson v. Gillett, 55 Mo. App. 312. Secondly, the oral evidence •in question was clearly competent, for under the facts in this record it was not obnoxious to the rule that none of the contractual elements contained in a completed written contract can be altered, varied or contradicted by a contemporaneous or prior oral agreement. The written contract between the parties was made by defendant and plaintiff under their respective seals on the thirteenth day of December, 1888. When thus completed it was delivered to plaintiff. In substance it recited the injury sustained by plaintiff, and his confession three times repeated, that it was caused by his own carelessness and nothing else; his former faithfulness in the discharge of the 'duties committed to him; his release of further claim against the defendant, and, in consideration of all which, defendant’s promise to pay plaintiff absolutely $10 per week for a period of two months following the injury, and thereafter to give him employment for sneh time and such wages as may he agreeable to said company, with a further proviso that plaintiff might be dismissed from employment after the lapse of said two months, if defendant saw fit. Judged e visceribis it is too plain for discussion that the above contract was in all respects complete and enforcible after it had been delivered to plaintiff, who was the promisee of the money obligated to be paid thereunder. Now, the oral evidence of plaintiff tended to prove that this contract subsisting in his favor was subsequently taken to defendant and surrendered to it upon a new oral agreement then entered into, several months after the execution of the written contract, to-wit, April, 1889; that by the terms of the new agreement plaintiff was to deliver up the previous written contract, and agree further that he would not sue the defendant for the injuries which he has suffered in its employ, in consideration whereof defendant agreed to pay plaintiff $200 in cash, and employ him for his life at the fixed rate of $10 per week. The evidence tended to show that plaintiff carried out the new agreement on his part, and that defendant paid plaintiff in cash ($200) stipulated for, and thereafter paid him '$10 per week for his services, until August, 1897, when he was discharged in contravention of the new agreement. According to these stipulations it was the plain purpose of the parties to substitute a new oral agreement between themselves for a previous written agreement. They had a clear legal right to do this, provided the new agreement was subsequently formed and supported by a sufficient consideration. Lancaster v. Elliot, 55 Mo. App. l. c. 255. The above evidence tends to show the truth of both of these hypotheses, for it shows that the new oral agreement was made several months after the written agreement had been executed and delivered to plaintiff, who was the party to be benefited thereby, and that plain tiff yielded for the new agreement, first, his promise not to sne defendant, which he had not heretofore given; second, the surrender of the former written contract itself into the hands of the defendant, who in exchange for these considerations agreed to pay a stated sum in cash to plaintiff, and to employ him for a definite time thereafter at a fixed rate of wages, which it (defendant) was not obligated to do under the former written contract. These considerations were amply sufficient to support the mutual undertakings assumed by the parties in the new contract entered into by them as a substitute for their former written engagement. It is evident from this consideration of the contents of the record that the doctrine invoked in the instruction can not be stretched to fit the evidence actually adduced and its legal import, without snapping asunder, in the attempt, the legal principle upon which it is based.

The ruling of the trial court in refusing the two instructions proffered by respondent was correct. Its subsequent award of a new trial on account of that ruling was manifestly erroneous, and as it is not shown that the new trial was properly granted for other reasons set forth in the motion therefor, the order granting the same is reversed and the cause remanded, with directions to enter judgment on the verdict in plaintiff’s favor.

' Judge Bland concurs; Judge Biggs dissents.