Bruckman v. Hargadine-McKittrick Dry Goods Co.

BLAND, P. J. — I. The theory of the plaintiff is that the suit is on the written contract. That the verbal agreements made from time to time for additional lamps were but additions to the things to be furnished under the original contract and that this agreement did not modify or change the written contract, and this was the theory upon which the case was tried and which was evidently adopted by the trial court. The contention of appellant is that these subsequent oral agreements modified and changed the written contract, and that the modification threw the whole contract into parol, and that the contract is void under the statute of frauds as it was not to be performed within one year. We do not think the written contract was modified by the verbal agreements. Not a word, line or syllable of that contract was changed or modified in the least by any of the verbal agreements. Everything to be done under it remained to be done just as provided for in the contract and no modification of the machinery to compose the plant, or the number or quality or the power of the lamps to be furnished, nor of the rent to be paid nor of the duration of the contract, was in the least changed by the subsequent agreements. The verbal agreements made after the written one, provided for additional lamps at an agreed rental per lamp per month. No resort to the written contract was necessary to understand their terms and they were complete contracts in themselves, separate and apart from the written one; as much so as was the contract to furnish a man thirty dollars per month to attend to the lamps after the plant was fully installed. If there was any doubt on this point that doubt is removed by the conduct of the parties themselves who treated the several agreements as separate and distinct contracts as is shown by the monthly statements of the rent accounts rendered de — 463 — fendant from month to month by the plaintiff and paid by defendant without objection. The petition contains but one count when it should have contained three. This fault, however, was waived by the answer. The court correctly declared the law applicable to the contracts for the extra lamps in the instruction, supra, but found against the defendant for the rents on the extra lamps on the theory, as we must conclude, that the contract for these lamps was an addition to the written contract and was protected from the operation of the statute of frauds for the reason that the original contract was in writing. This was manifest error.- The law is that, “A contract partly in writing and partly oral is, in legal effect, an oral contract. This occurs where there is at first a written contract and afterwards it is changed orally.”- . Bishop on Contracts, sec. 164. To take the case out of the statute of frauds, requiring certain agreements to be in writing, the contract must be evidenced by the writing and can not be pieced out or added to by oral testimony. Ringer v. Holtzclaw, 112 Mo. 519; Rucker v. Harrington, 52 Mo. App. 481; Miller v. The Goodrich Bros. Banking Co., 53 Mo. App. 430. II. The right of defendant to the use of the plant and lamps expired, according to the contract, on December 1, 1891, but it is provided in the contract that the contract might be continued thereafter for one year or longer at the option of defendant. There is a disagreement between the parties as to the meaning of this option clause, but it does not seem to us that the clause is susceptible of more than one construction. The contract expired on December 1, 1897. It could not be renewed or continued without the defendant elected to renew it and it could not be renewed for a shorter period than one year; but it might have been renewed at the election of defendant for any period in excess of one year. The option to renew was to renew for one year or longer and the contract was renewed for one year if the evidence proves — 464 — that defendant exercised its option to renew for that time. There was no formal notice to plaintiff that defendant would, or intended to renew the contract; but the defendant continued to use the plant and to pay the rent at one hundred and seventy-five dollars per month up to and including June, 1898. The contention of appellant is that from the expiration of the contract to the time it ceased to pay rent the relation of tenant from month to month subsisted between it and appellant. The vice of this contention is that the written contract, though termed by the parties a lease, did not create the relation of landlord and tenant between plaintiff and defendant. The contract is not a lease but the hiring of the use of personal property. Plaintiff had no interest as lessee or otherwise in the building or ground occupied by the defendant and had nothing to lease. A lease is defined to be “a contract for the possession and profits of lands and tenements on the one side and the recompense of money or property on the other.” 18 Am.' and Eng. Ency. of Law (2 Ed.), p. 597; Bouvier’s Law Die. Defendant leased no land or tenement from the plaintiff but contracted to pay him for the use of personal property to be put in a tenement which it occupied under a lease from a third party. The contract being one of hire of personal property, it is pertinent to inquire as to the situation of the property and the relative rights and duties of the plaintiff and defendant in respect thereto at the expiration of the term for which it was hired, to-wit, Decomber 1, 1897. The property was in the possession of the defendant and situated in its building. It had in its hands and under its notice the option or offer of plaintiff to rehire the use of it for one year or longer at one hundred and fifty dollars per month. The offer was good for one day and no longer, as time was of the essence of the option. Longworth v. Mitchel, 26 O. St. — 465 — 334; Barrett v. McAllister, 33 W. Va. 738; Weaver v. Burr, 3 L. R. A. 94; Smith’s Appeal, 69 Pa. 474. The defendant was not entitled to use tbe property for another day without a new contract. It had either to exercise the option to keep the plant for one year or longer, or to make some other arrangement with plaintiff by which it might continue its use. The contention of defendant is that it was permitted by the plaintiff to continue the use of the plant from month to month at the price of one hundred and seventy-five dollars per month. The fact that plaintiff continued to demand and the defendant to pay one hundred and seventy-five dollars per month after the expiration of the contract, when, if defendant had exercised its option to renew the contract, the rent due would have been but one hundred and fifty dollars per month, lends strong support to this contention. The evidence of respondent that the monthly bills were made out by his stenographer and that money was advanced on them by the appellant before the rent became due and that he had given credit on the rent account for all that he had received should be considered as tending to prove that he did not have a tacit understanding with respondent thax it might retain the plant from month to month. On this feature of the evidence the court refused the following instruction: “The court declares the law to be that by the terms of the written contract dated July 22, 1895, and introduced in evidence, defendant was to pay plaintiff the sum of $175 per month until December 1, 1897, for the use of the electric light plant described in said contract, and on December 1, 1897, defendant was to have the option whether it would take the plant for another year at a rental of $150 per month, and if the court finds from the evidence that defendant did not exercise its option to take such plant for another year at $150 per month, but continued to use such plant from month to month, paying therefor the original rental of $17 5 per month, — 466 — and if the court finds that defendant has paid plaintiff for all the time it actually used such plant, then plaintiff is not entitled to recover, and the judgment .should be for the defendant.” Prom its refusal to give this instruction it is impossible to determine upon what theory of law the court decided the case. The vital question in the case was whether or not respondent had exercised its option to renew the contract for a year or longer, or continued the use of the plant from month to month under a tacit understanding with respondent that it might do so. We are to infer from the action of the court in refusing the instruction that the court did not consider this question of fact at all and arrived at its conclusion upon some other hypothesis. We think that the conduct of defendant in rendering and collecting bills at the old price is evidence tending to prove that there was a tacit understanding between he and appellants that the latter might continue to use the plant from month to month. On the other hand appellant’s retention and continued use of the plant after the expiration of the original time of the hiring was notice to plaintiff that defendant had accepted the option. Allen v. Chouteau, 102 Mo. 309; Riggins v. Railroad Company, 73 Mo. 598. If A offers B a sum of money to do a particular piece of work and B makes no reply but does the work it would not be contended that he did not accept the offer and that A was not liable to him for the sum he offered to pay for the work. Plaintiff offered defendant the use of the plant for one year or longer after December 1, 1897, at one hundred and fifty dollars per month. Defendant said nothing but retained the plant and used it. This was certainly evidence of defendant’s acceptance of the offer. Bishop on Contracts, sec. 330. Acting under a proposal may constitute an acceptance. Graham v. State ex rel., 66 Ind. l. c. 394. And the retention of the possession of the plant and its continued use — 467 — after December 1, 1897, changed the option to an executed contract for the use of the property for one year in the absence of a different agreement. Byers v. Denver C. R. Co., 13 Colo. l. c. 555, and cases cited. But it is a question of fact, not of law, under the evidence in the case whether or not appellant exercised its option, or held the plant from month to month by the consent of respondent. That this question may be tried under proper instructions, we reverse the judgment and remand the cause.