Hopkins v. Harlin

BLAND, P. J. — A. J. Hopkins, Henry Taylor, Bennett Kirkland, Lum Dean, Will Vaughn, Emmett Williams, William Wilson and Isom Wilson, in 1895, on legal process, attended the Ozark Circuit Court, as witnesses for the defendant, in a case pending in said court wherein the State was plaintiff and Ben Taylor was defendant, on an indictment for grand larceny. The venue of the cause was changed to the Douglas Circuit Court and the above named witnesses were' recognized to appear in that court to testify in said cause, at the March term, 1896, and they did appear, in obedience to the recognizance. They claimed their witness fees for each attendance. Their fees were duly allowed, certified to the State Auditor and in due course paid to the clerk of the Douglas Circuit Court (the cause having been dismissed at the March term, 1896, of said court). They jointly and severally executed [467] and delivered to the defendant the following order in respect to their fees: “Ava, Mo., Sep. 29,1896. “Circuit' Clerk, “Dear Sir: — Pay to the Bank of Gainesville all my fees as witness and jurors in the case of State of Mo. v. Ben Taylor. “A. J. Hopkins. Will Vaughn. “Henry Taylor. Emmett Williams. “Bennett Kirkland. William Wilson. “Lum Dean. Isom Wilson.” With the following indorsement on the back: “Pay to Guy T. Harrison or order. “Bank of Gainesville.” For attendance on the Ozark Circuit Court, they were allowed the following fees as witnesses: A. J. Hopkins.......$ 12.25 W. A. Vaughn.. .$ 8.50 Henry Taylor ....... 10.50 Emmett Williams 11.00 Bennett Kirkland.... 8.10 Wills Wilson.... 11.00 C. C. Dean.......... 8.00 Isom Wilson .... 11.00 Taylor, Kirkland, Dean, Vaughn, Williams and the two Wilsons assigned their fees allowed at this term of court to plaintiff to enable him to sue and collect the same. It is admitted that the Bank of Gainesville is a private bank and the defendant, as its agent, took the order for the fees. Plaintiff sued to recover the fees allowed to himself and his assignors at the Ozark term of court, alleging, in substance, that the order given defendant was not given for these fees, that they were included in the order by mistake. The answer was a general denial. On the part of plaintiff, the evidence shows that defendant came to him and stated he wanted to buy his fees due for attendance on the Douglas Circuit Court, that plaintiff told defendant he wanted to sell all his fees in the case. Defendant then said he did not want [468] the fees which accrued in the Ozark Circuit Court, that they could not he collected and he would not give £ £ the snap of his finger for them.” Plaintiff testified that he then agreed to sell his fees for attendance on the Douglas Circuit Court to the defendant at sixty cents on the dollar, at which price defendant agreed to purchase these fees and did purchase and pay plaintiff for said fees on this basis, and that his assignors also agreed to sell their fees for attendance on the Douglas Circuit Court on the same basis and did sell them and receive pay on the basis of sixty cents on the dollar, whereupon they all signed the order; that none of them sold any of their fees for attendance on the Ozark Circuit Court and were not paid one cent for these fees and not intend to give defendant an order for their collection and were not aware that these fees were embraced in the order signed by them. It is admitted that all the fees of these witnesses for both terms of court were paid by the clerk of the Douglas Circuit Court to the defendant on the presentation by him of the foregoing order. Defendant testified as follows: "Hopkins came and called me out of the courthouse and asked me if I would buy the fees in the Taylor case; I told him yes, but that I could not pay very much for them, as there was one term that I would probably not get anything for, and there were a number of witnesses that did not testify and under a ruling of the court I did not know whether I would get their fees or not, but I named a sum that I would give them, that is, each one of them, and Hopkins said that would be all right, that it would furnish them whiskey to go home on, and they all signed an order and I paid them the money.” Defendant further testified that he did not buy the fees on a percentage hut gave each of the parties a lump sum for all his fees in the case. [469] The issues were submitted to the court sitting as a jury. At the close of the evidence, defendant moved the court to declare the law as follows: ‘ ‘ 1. The court declares the law to be in this ease, that, under the order for fees introduced in evidence, the plaintiff is not entitled to recover. “2. That the order for fees, given by plaintiff to defendant, is conclusive as to the understanding and agreement of the parties and cannot be changed, altered or modified by parol evidence, and the finding is for the defendant.” The court refused to so declare the law and found the issues for the plaintiff. Defendant appealed. The only error assigned is the refusal of the court to declare the law as asked by appellant. His contention is that the order for the fees is a contract in writing and could not be contradicted or varied by parol evidence. Not everything that is in writing is written evidence within the meaning of the law. It is only such documents as contain the terms of the contract between the parties and are designed to be the repository and evidence of their final intention that are dignified as such written evidence as cannot be contradicted, varied or explained by oral evidence. [Greenleaf on Evidence (16 Ed.), sec. 275.] A memorandum of a contract that does not purport to be a complete expression of the entire contract is always open to explanation by oral evidence. [Norton v. Bohart, 105 Mo. 615, 16 S. W. 598; Kenefick v. Type Foundry Co., 72 Mo. App. 1. c. 385, and eases cited.] The order for the fees is not a complete contract; it is a mere memorandum authorizing the clerk of the circuit court to pay the fees to the bank but is silent as to the disposition the bank should make of the fees after collecting them and for this reason was, as between the parties, open to explanation by oral evidence. We think the court very properly refused defendant’s instructions. The judgment is affirmed. All concur.