Clark v. Diffenderfer

Peeks, J., delivered the opinion of the court. This cause was transferred to this court from the Supreme Court, pursuant to the provisions of an act of the General Assembly of the state of Missouri, approved March 4, 1885. Laws, 1885, p. 144. The case originated before a justice of the peace in Laclede county and is based on an account for work done under a written contract. Prom the judgment of tbe justice the defendant appealed to the circuit court, where, in August, the plaintiff again having judgment, the defendants again appeal and bring the case here. Quite a number of reasons are assigned why the judgment should be reversed, chief among which are: (1) Because the court erred in overruling defendants’ demurrer to the evidence; (2) because the verdict of the jury is against the evidence adduced at the trial; (3) because the verdict is against the law as declared in the instructions given by the court; (4) because the court erred in refusing to give instructions asked by defendants; (5) because the court erred in permitting oral evidence to go to the jury to vary the terms of the written contract introduced in evidence and madébetween plaintiff and defendants. The work here sued for was done under the following written agreement: ‘'This agreement made and entered into at Lebanon, Missouri, this fifteenth day of September, 1881, by and between Matt Clark, party of the first part, and Liifenderfer & Company, party of the second part. Witnesseth :• That for and in consideration of the payments hereinafter mentioned, the party of the first part hereby covenants and agrees and binds himself strictly in accordance with the terms and stipulations of this agreement to perform certain work and labor, beginning at station one and ending at station five hundred and [236] .eighty-five of the Laclede & Fort Scott Railroad Company, under the direction of the said party of the second part, or any agent it may appoint, and subject to the .chief engineer of said Laclede & Fort Scott Railroad Company, at the following prices per cubic yard of each material designated, to-wit: First-class masonry, nine dollars ($9.00) per cubic yard; second-class masonry, six dollars ($6.00) per cubic yard; third-class masonry, three dollars ($3.00) per cubic yard ; paving slope wall or rip-rap, one and twenty-five hundredths dollars per cubic yard. Haul over one mile on masonry, thirty cents per cubic yard per mile after first mile. The measurements and classifications to be the same as made by the chief engineer of the Laclede & Fort Scott Railroad Company, or his assistants.” There was testimony tending strongly to show that under the contract the plaintiff had been paid for all the work he did. According to the estimate made by the chief engineer, upon this point, the witness, Walkinshaw testified: “Burlingame was chief engineer. Quigley succeeded him. This estimate, of the engineer is the last and final estimate of work done by Diffenderfer & Company. I paid the hands for work done. I settled with Matt Clark (plaintiff) after the work was done. Matt Clark said he wanted to get his money, and never said anything about second-class masonry. He did not express any dissatisfaction at his pay. * * * At the time I settled with him he made no objections to the settlement. We paid in full the amount he claimed.” J. B. Quigley testified: “Imeasured and estimated all the work done by Diffenderfer & Company, and, as chief engineer, measured all the work done by the plaintiff. Said measurement was carefully done, and is correct, as rendered, in every particular, and that all the work done by Clark on said road is forty-nine and six-tenths yards, of third-class masonry. He did not do any second-class masonry on said road for defendants. X conversed with plaintiff in regard to work done by [237] him and lie then was perfectly satisfied with the estimate and made no complaint, bnt on the contrary said it was correct in every particular.” Such being the testimony, as to the classifications and the measurements, under the written contract made by the parties, we are unable to discover upon what theory the plaintiff is entitled to recover at all. He sues for second-class masonry, and the engineer to whom he agreed in writing to leave the classification and measurement, says he did no second-class masonry,, and was paid for all the third-class work he performed. The plaintiff is bound by his agreement, it is plain and direct. It describes the work, specifies the pay, and directs the measurement and classification. We think the court erred in permitting the plaintiff to offer parol evidence varying the terms of the written contract. There was no such ambiguity in the contract as called for parol explanation, nor is the contract in itself incomplete in its terms. James v. Clough, 25 Mo. App. 147; Shickle v. Chouteau, 10 Mo. App. 241. But aside from this question and independent of the error complained of in giving and refusing instructions, we are at a loss to understand upon what theory the court sent the case to the jury. There was no testimony to justify it, and the demurrer to the evidence ought to have been sustained. It follows, then, that the judgment of the lower court must be reversed. The other judges concurring, it is so ordered.