England v. Denham

BLAND, P. J. The petition, omitting caption, is as. follows: “Plaintiff for cause of action states that on the twelfth day of June, 1900, defendants entered into a written contract and agreement with plaintiff as follows: [16] “contract." “Kind of design, stump. “Kind of material, marble, gray marble, Bedford. “Name of city or postoffice, Granby. “Date, June 12, 1900. “Die, 6-Oxl-8. “James England, Neosbo, Mo., please deliver for us at Granby cemetery, State of Missouri, about the first day of August, 1900, or as soon thereafter as convenient, the work described in this contract, inscribed as follows and the inscription occupying the numbered space as shown in the margin: “H. Grant Arnett, born Sept. 7, 1865, died May 27, 1900, with such extensions as may be customary, and on delivery of the above-described work, for value received, we promise to pay J ames England or order, one hundred dollars, with interest at the rate of eight per cent after delivery until paid. It is also understood as a part of this contract, that if the money is not paid in all or in part, that the holder of this contract can go and take the tombstone down at any time he may deem himself insecure, and appropriate it to his own use to secure the unpaid portion of the money, without relief from valuation or appraisement laws of the State. I do not allow my agents to make verbal understandings or agreements. “It is understood as a part of this contract, if the lodge fails to pay one-half of the amount of the certificate, parties signing this contract are not liable for-the amount. “Purchasers’ signatures. “W. N. Denham, “T. J. Brackeen. “That plaintiff within the time limited in said contract did deliver at the Granby cemetery a monument of the kind, quality, dimensions and with inscriptions thereon as provided in said contract, and in all things complied with the terms17 and conditions of said contract to be by him performed. That the lodge mentioned in said contract, to-wit, the Woodmen of the World, have paid one-half of the certificate of life insurance upon the deceased H. Grant Arnett. But that said defendants have failed and refused to pay plaintiff the said sum of one hundred dollars, although requested so to do. That said contract is herewith filed, marked ‘Exhibit A,’ and made a part hereof. Therefore plaintiff' asks judgment for said sum of one hundred dollars with interest thereon at the rate of eight per cent per annum from the — day of August, 1900, and for costs and for all proper relief.” The answer is as follows: “Gome now the defendants and for their joint answer admit that they executed the contract filed herein, as charged, but deny that the plaintiff complied with the terms and conditions of said contract. That the inscriptions placed upon the tombstone contracted for are not the copy of those that were furnished the plaintiff, and there was a total failure on the part of the plaintiff in copying the inscription as to the birth and death of Grant Arnett. That the contract was not complied with and the plaintiff is not entitled to recover. That at the time of the execution of the contract the plaintiff agreed with defendants that he would not execute the same until he was notified by defendants, and unless such notice was given he was not to do the work, and defendants say they never notified plaintiff to proceed with the work. Defendants having answered, ask that the cause be dismissed.” The issues were submitted to the court sitting as a jury, who, after hearing the evidence and passing on the declaration of law asked by plaintiff, found the issues for defendants. Plaintiff appealed. To sustain the issues on his part plaintiff read in evidence the contract and offered evidence tending to prove that he executed and delivered at the Granby cemetery a tomb [18] stone fulfilling every requirement and condition of the contract and having upon it the inscriptions called for by the contract. Defendants offered evidence tending to prove that when the contract was executed the dates of Arnett’s birth and death were left blank and that it was mutually agreed that, plaintiff should get the correct dates as to Arnett’s birth and death and write them in'the contract and inscribe them upou the tombstone; that he did go to the widow of Arnett for the purpose of getting these dates and that she gave him the correct dates and informed him that Arnett was born on September Y, 1864; that instead of writing the date of his birth in the contract as September Y, 1864, he wrote it September Y. 1865, and engraved this erroneous date on the tombstone as the date of Arnett’s birth; that in fact Arnett was born on September Y, 1864. All of this evidence was objected to by the plaintiff for the reason that it was not admissible under the issues as made by the pleadings, which objection the court overruled and refused the following instruction asked by the plaintiff bearing upon this evidence: “The court declares the law to be that the question of the plaintiff inserting a wrong date in a blank in the contract in question is not an issue in this case and can not be considered as any ground to defeat plaintiff’s recovery.” The answer admitted the execution of the contract but denied that plaintiff complied with its conditions. It then proceeds in an indefinite manner to state in what respect he failed to comply with the conditions of the contract, to-wit: “That the inscriptions placed upon the tombstone contracted for are not a copy of those that were furnished plaintiff,” and further on we are informed by the answer that there is an error in the inscription of the dates of the birth and death of Arnett. It is not alleged that these dates were left blank in the contract because unknown when it was executed, or that [19] plaintiff agreed to ascertain the correct dates and write them in _ the contract and inscribe them on the tombstone 'or that he undertook to do these things and made a mistake. If the facts relied on by defendants as a defense are that the dates of Arnett’s birth and death were left blank to be written in the contract by the plaintiff after its execution and he undertook to do this and failed to write them in correctly, or to correctly inscribe them on the tombstone, then these facts should have been alleged in ordinary and concise language. They were not put in issue by the denial that plaintiff had performed the contract for the reason that they were not facts included in the allegations necessary to support pl?,in-tiff’s case. Northrup v. The Mississippi Valley Ins. Co., 47 Mo. 435; Hudson v. Railroad, 101 Mo. 13; Ice Co. v. Mo. Edison Elec. Co., 86 Mo. App. 233; Meier v. Proctor & Gamble Co., 81 Mo. App. 410. The contract, as pleaded by plaintiff and as read in evidence, was complete in all of its terms and conditions, leaving nothing to be supplied — nothing to inference. The execution of this contract was admitted by defendants. To avoid its terms and conditions by new matter happening after its execution, the new matter in avoidance should have been specially pleaded by the answer. Phister v. Gove, 48 Mo. App. 455; Thomas v. Moore, 46 Mo. App. 22. But defendants could not in the same answer admit the execution of the contract in its complete form and allege that the date of the birth and death of Arnett (these being material facts) were left blank; such a plea would be inconsistent with the admission. Under the allegations of the answer we think the only defense that was available was that plaintiff had failed to comply with the conditions of the contract as it was written and admitted to have been executed. In this state of the pleadings evidence tending to show that the birth of Arnett was incorrectly inscribed on the tombstone (the inscription being those pro [20] vided for by the contract) was inadmissible and should have been excluded. The judgment is reversed and the cause remanded. Barclay and Goode, JJ., concur.