
    Quick, Appellant, v. Glass.
    Division One,
    May 14, 1895.
    Sale: memorandum: parol evidence. Where the memorandum of a contract of sale is incomplete, parol evidence is admissible to show the omitted matter.
    
      Appeal from Holt Circuit Court. — Hon. C. A. - Anthony, Judge.
    Affirmed.
    
      Samuel O’Fallon and T. C. Dung cm for appellant.
    (1) The court erred in admitting parol evidence of the agreement and understanding of the parties as to the sale, delivery, etc. A written contract is the consummation of all prior propositions and negotiations between the parties, and is conclusively presumed to contain the whole contract. This principle is elemental and fundamental. Jolliffe v. Collins, 20 Mo. 338; Teaman v. Hoshaw, 98 Mo. 358. (2) Where a contract in writing is unambiguous and free of fraud, and purports to be complete in itself and to cover the entire transaction, evidence as to the terms of prior parol agreements, propositions or negotiations are inadmissible. Turner v. Railroad, 20 Mo. App. 632; Railroad v. Cleary, 77 Mo. 634; Rollins v. Claybrook, 22 Mo. 405; Pearson v. Carson, 69 Mo. 550. (3) The court clearly erred in refusing plaintiffs second instruction. The only evidence of any contract, other than the written one, sued upon, tended to modify, vary and change the said written contract and consisted of propositions offered while negotiations were pending before the written contract was made and were merged in such, written contract, and parol testimony can not be received to vary, modify, change or explain such written contract. Bailroad v. Cleary 77 Mo. 634; O’Bryan v. Kinney, 74 Mo. 125; Jolliffe v. Collins, supra; Pearson v. Carson, supra; Chrisman v. Hodges, 75 Mo. 413; Miller v. Bumlap, 22 Mo. App. 97.
    
      A. VanBushirh and John W. Stohes for respondent.
    (1) Where the written contract is perfect and complete within itself parol evidence is not admissible; but such is not the case where it is imperfect, incomplete and can not be understood without such evidence. Lash v. Parlin, 78 Mo. 391; Brown v. Bowen, 90 Mo. 184: Yeoman v. Hoshaw, 98 Mo. 358. (2) The memorandum of the executory contract is silent as to the disposition of the goods from its date until date for inventory. The court, therefore, committed no error, in admitting oral agreement, as to disposition of goods between the said dates. Lash v. Parlin, 78 Mo. 391; Harhness v. Briscoe, 47 Mo. App. 196; Welsh v. Kdmison, 46 Mo. App. 282; Yeoman v. Hoshaw, 98 Mo. 358.
   Macfarlane, J. —

The suit is for damages for breach of a written contract under which defendant sold to plaintiff a stock of goods in his store at Porrest City. Each party was a merchant doing business in said town. Terms for the sale of the stock in trade of each were proposed and plaintiff had the right to buy or sell on the proposed terms. The terms were as follows: “Said both stocks of general merchandise are to be invoiced January first to sixth, 1892, at net cost price, with no freights or drayage allowed, and all goods damaged to be a reasonable reduction, fifty per cent, to be deducted from foot of invoice, money to be paid after inventory is satisfactorily footed up.” Plaintiff elected to take the goods on these terms. There was no dispute over the contract as thus expressed. It was concluded December 15, 1891. Defendant continued selling the goods until January 1, when what remained were invoiced and delivered to plaintiff and accepted by him. The evidence tended to prove that a large part of the best of the goods was sold between the date of the contract and the date of the invoice.

On the trial the defendant was permitted to introduce evidence tending to prove that there was a verbal understanding at the time the proposition of sale was submitted that the one who might be the seller should have the right to continue to sell at retail until the time fixed for making the invoice.

This instruction asked by plaintiff was refused: “The court instructs the jury that they will exclude all evidence of any contract between plaintiff and defendant, except that contained in the written contract introduced and read in evidence in this cause.”

The court submitted to the jury, by an instruction given on its own motion, the question whether or not, under the agreement of the parties, defendant had the right to sell at retail until the time for making the invoice.

The judgment was for defendant and plaintiff appealed.

The contract only provides how the purchase price shall be ascertained; the time of making the invoice; and when payment should be made. These requirements the parties were not willing to intrust to the uncertain memory of witnesses, and, having put them in writing, evidence was not admissible to vary or contradict them.

But this was a sale of goods to be executed in the future. The object of making the invoice was to determine the quantity of the goods in order to ascertain the price to be paid. Why was this postponed for fifteen days, if no sales were to be made in the mean time? The contract as written was evidently incomplete in not providing what should be done with the goods between the date of the contract and the date of delivery. This omission, we think, could be supplied by evidence outside the writing. ‘‘Where there is but a memorandum of a contract, and it does not purport to be a complete expression of the entire contract, or where a part only of the contract is reduced to writing, the matter omitted may be supplied by parol evidence.” State ex rel. v. Hoshaw, 98 Mo. 360; Rollins v. Claybrook, 22 Mo. 406.

The right to sell was not inconsistent with any part of the contract reduced to writing, but seems rather to have been contemplated by the parties. No error appearing, the judgment is affirmed.

All concur.  