Daly v. Wilbur

COX, P. J. Action for breach of contract, trial by court, judgment for plaintiff and defendant has appealed. In the year 1915, J, A. Daly, S. A. Wight and L. A. Johnson were the owners of all the stock of the OdellDaly Material Company, a corporation, engaged in the business of handling chats, gravel and sand that were piled up near mines in Jasper county. They secured .from the owners of land or mining leases the execution of leases to their corporation' by which they were given the right to load and ship chats, sand, and other waste material from the mines and for which a compensation would be paid. This corporation had a lease of the character just described on what was known as the Vogy mine which expired April 3, 1916. On August 7, 1915, the parties aforesaid sold all of the stock in the OdellDaly Material Company to defendant for the sum of $9000 and at that time the contract sued on in this case was executed which provided that on certain conditions $1000 more should be paid. The material parts of this contract are as follows: “It is hereby agreed that in case parties owning what is known as the Vogy mine or loading station shall extend their lease on satisfactory basis from the third day of April, 1916, at which time the present lease with the Odell-Daly Material Company will expire, and the Odell-Daly Material Company shall pay the said J. A. Daly, S. A. Wight, and L. A. Johnson the sum of One Thousand Dollars in addition to the said Nine Thousand Dollars ($9000), said extension to be secured from the owners of said land on or before the third day of April, 1916. “Mamie R. Wilbur, “By GI-eorge D. Farris, Atty. *58 The plaintiff, Daly, alleges in his petition that the extension called for in the contract had been procured and that he had become the owner by assignment of the interests of Johnson and Wight in the contract and asked judgment for $1000. The answer denies personal liability of defendant on .the contract. Denies that the contract is enforceable because it is so vague and uncertain that its meaning cannot be determined. Denies that any assignment of said contract had been made to plaintiff by Wight or Johnson. Also alleged fraud in the sale of stock in the corporation to defendant and asked damages therefor. No extension of the lease on the Vogy mine or loading station held by the corporation at the time of the execution of the contract sued on was ever secured but a new lease dated April 3, 1916, and expiring March 30, 1917, was secured. This lease was made to the Odell-Daly Material Company, the corporation in which defendant then owned all the stock and was signed on part of the lessee by Dora Dobson, Sec., and J. Gf. Wilbur, Gen. Mgr. J. G. Wilbur had represented defendant in the transaction from the beginning. This new lease had some provisions that were substantially different from the former lease but defendant accepted it and shipped material under it for the full time provided in it. We do not agree with defendant’s contention that defendant was-not personally obligated by the contract on which suit was brought. While the contract provided that if the extension of the lease was secured, the OdellDaly Material Company would pay, yet it was signed by her alone and since she was the owner of all the stock in the corporation, we hold that the contract was her individual contract. Neither do we think that the contract is so indefinite in its terms as to be unenforceable. By giving the language of the contract a fair interpretation, it is clear to us that defendant agreed that if the extension of the lease therein provided should be secured, she would pay $1000 therefor. *59 It is next contended that the contract calls fox an extension of the old lease and that it conld not he complied with by securing a new lease with provisions therein materially different from the old lease. Generally speaking, that proposition is correct and had defendant stood upon it and refused to accept the- new lease her position would be sound, but she is now estopped from asserting that defense because she accepted the new lease and operated under it and secured all its benefits and hence she cannot now be heard to say that it is not what the contract provided she should have. It is also contended that the provision in the contract that the extension of the lease to be secured was to be “on satisfactory basis” meant that it should be satisfactory to defendant and that the evidence shows that the lease secured was not satisfactory to defendant and therefore she is not bound. Without deciding whether or not defendant is right in-her contention as to the meaning of the word “on satisfactory basis” used in this contract, we hold that by keeping the new lease, she has placed herself in the position of agreeing that it was satisfactory for if it were not, she should not have accepted it. The most serious question in this ease is as to the competency of plaintiff Daly as a witness to testify that Wight, one of the obligees in the contract sued upon had assigned his interest in the contract to plaintiff. Wight was dead at the time of the trial and plaintiff was permitted over the objection of defendant to testify that he had received from Wight a written assignment of his interest in the contract sued on. In this contract defendant had agreed that if the lease on the Vogy mine should be extended she would pay to' plaintiff, Johnson and Wight, $1000. Plaintiff had a written assignment from Johnson transferring his interest in this contract. Plaintiff also claimed that he had a written assignment from Wight executed by him in his lifetime but that it was then'lost. Plantiff’s testimony as to this assignment from Wight was objected to on the ground that Wight *60 being dead, tbe statute made plaintiff incompetent to testify in relation to any contract of assignment from Wight to him. This assignment was pleaded by plaintiff in his petition and denied by the answer of deféndant and hence as to the interest of Wight in the contract sued upon, it was necessary for plaintiff to prove the assignment from Wight to himself in order to recover. The statute relied on by defendant as rendering plaintiff incompetent is section 5410, Revised Statutes 1919, which after declaring that no person shall be disqualified as a witness by reason of his interest as a party or otherwise has the following proviso: “Provided: that in actions where one of the original parties to the contract or cause of action in issue and on trial is dead or is shown to the- court to be insane, the other party to such contract or cause of action shall not be permitted to testify either in his own favor or in favor of any party to the action, claiming under him . . .” This statute has been before the Supreme and Appellate Courts of this State for construction a great many times as have somewhat similar statutes in other states and the decisions do not seem to be at all harmonious. In Jones’s Commentaries on the Law of Evidence, a very eminent authority, at sec. 774, in commenting upon the statutes of the various States and ‘ the decisions of the courts construing them, we find this statement: “While there has been a desire to make common exceptions, the variations in the statutes are so marked and the conflicting decisions so irreconcilable that the lawyer can only take one State at a time and hope to have very little guidance from decisions out of that State.” Our examination.of authorities from other States has convinced us of the correctness of that author’s statement. The courts of our own State in passing upon the varying shades of difference in the facts of the cases under review have .not always seemed to be in entire harmony though most of the apparent differences may be accounted for by the different state of facts to which each decision is applied. *61 The ease of Bradley v. West, 68 Mo. 69, appears to support the contention that plaintiff was a competent witness in this case hut that case was overruled in Chapman v. Dougherty, 87 Mo. 617. In the latter case, at page 626, it is said: “The disability of the original parties to the contract or cause of action in issue and on trial where the other party is dead and the survivor is a party' to the suit is co-extensive with every occasion where such instrument or cause of action may be called in question. At least the statute lays down but one rule and that should be the guide.” This case has been followed and approved by the Supreme Court ever since. [Leiber v. Leiber, 239 Mo. 1, 13, 143 S. W. 458; Goodale v. Evans, 263 Mo. 219, 229, 172 S. W. 270; Edmonds v. Scharff, 279 Mo. 78, 86, 213 S. W. 823.] The contract by which it was claimed Wight has assigned his interest to plaintiff was the contract in issue and on trial, and without proof of that assignment plaintiff could not recover for that interest. [Chapman v. Dougherty, 87 Mo. 617; Leiber v. Leiber, 239 Mo. 1, 13, 143 S. W. 458.] Plaintiff in this case was a party to the original contract of assignment between Wight and himself and was a party to the suit in which it became necessary to prove the execution of the contract of assignment, and under the authorities above cited, it is clear to us that plaintiff was not a competent witness to prove the assignment from Wight to him. We think the following cases are also in harmony with our holding in this case. [Bishop v. Brittain Inv. Co., 229 Mo. 699, 721-25, 129 S. W. 668; Lewis v. Oliver, 22 Mo. App. 203; Cleveland v. Coulson, 99 Mo. App. 468, 73 S. W. 1105; McClure v. Clement, 161 Mo. App. 23, 143 S. W. 82.] The record shows that plaintiff had secured an assignment from the heirs of Wight after his death. We do not think that could avail anything. There was no showing that Wight’s estate had been administered upon and closed and all debts paid and unless that were done *62 the heirs had nothing’ to assign. [Toler v. Judd, 262 Mo. 344, 171 S. W. 339.] In view of another trial, we wish to call attention to the fact that in this record there is no showing’ that any witness testified as to the contents of the lost assignment from Wight to plaintiff. If competent witnesses to prove this assignment are produced, they should testify as to the contents of the assignment. Merely describing it as an assignment does not show its contents or furnish any pi’oof that it was in fact an assignment. Judgment reversed and cause remanded. Bradley, J,, concurs. Farrington, J., dissents in separate opinion and asks that the case be certified to the Supreme Ccnrt which is accordingly done.