
    FRANK SIMMONS, Assignee, etc., Respondent, v. WESTLAKE CONSTRUCTION COMPANY, Appellant.
    St. Louis Court of Appeals,
    March 8, 1910.
    ■1. ASSIGNMENT pp|? BENEFIT OF CREATOR?; Building Contract: Assignee not Recjuir^d to Rerforip., ,^.n assignee for the benefit of’creáitors is not boú'ñd' to completé a‘construction'contract'madé-'by tíi'e>assiéfaor. before1 insoivency; tbougb theas-n>*a signed.estate is. ¡liable, ¡for tb§-breach, thereof;, - ». ■ : - .
    ¿!: CGNTRACTS:' ’Gonstructibn.1' 'English words'1'must be ’givén: ¡*i> ¡their ■ usualimeaning an■ construing: nnambigupus cunt-mots*
    •!3»r, ■.'..V.".1 *■; Building Contract: Gont'rabt Price:' Construction: Facts’ ■ MuStaied.. Blaintiffts assignor fon* tbe -benefit1 of. creditors bad.
    ; agreed, ^dfli the i^r^ncip.al «jonf^aptor tp fu^nipb qertai^. inaf erj^ and do,.certain work, on £ building, for tbe s.urn of $150,0, amj '‘ after bis assignment' to píbintiff,'wben'tbe1 contract bad been' biHjarfially^cbmplétedi ’tbe i latter- executed1- a 'contract1’ with the
    id-'principal contractor! and other-s,, .by-. ;wbiqb be, agreed fo ponjr . .^jPjet.e^th^ pp^tra.pt b„| b'qí’n^r-y 0, 1908 (t^e, qri,gin^l, conf rapt requiring its completiói| t>y Deeeipber 10, ,1907), and the principal 'contractor "ágreecT tó waive ' its' right1’ to liquidated" damages '>■ '¡'provided in-’.the^'origjihal'’ contractí-for^failure»’to complete-', the-f, i^vqrb. 1's\5ben>,a,§1?e.sdi.:an[|t>tol. ass.istj.pfa^tifE, tp, ,prqcn,ratpqyer to, , operate the assignee’s machine so as tp facilitate tbe work. Tbe contract also provided that tbe principal contractor should pay plaintiff for all labor and material^' required* to :complete: -¡•.‘...tbe work in weekly.payments, -and required/plaintiff to submit to ^{[ufailgfl. pay rp 11 ¡for all labor and,invokes,,for for w|y,ph be desired to f>p pqid, and also prpvided thaf, when " 'the'principal''contractor’’shall'have paid for 'ail ‘íá.bóÜ añíí má- ■ ferial .so réquired by-plaintiff,'' the1 balance due'under'the con-
    ij tuaeí:should-ibswpaid to: another; party thereto.* \ <j^el(?jVfbat- the principal contractor'was required, to, Pfay¡ plaintiff, for..all .the labor and material required to complete the work, whether or not the amount paid therefor exceeded the $1500 stipulated in the original contract.
    Appeal from St. Louis City Circuit Court. — Ho.n. Virgil Rule, Judge.
    
      AFFIRMED.
    
      Thomas C. Hennings and Klein & Hoiigh for appellant. , ' ,.
    . (1) An agreed cas must be verified by affidavit. R. S. 1,899, sec- 198. (2). A contract must be construed as an entirety.. County, of Johnson y, Wood? 84 Mo. ¡ 489 5 Lewis, v. Penn, 3 Mo. App. ¡ 372;. Qonstruc.tion Co. y.; Hayes, 191 Mo. 292. (3) Recital-of a prior agreement, in a later one, after if has been executed, does not, extinguish, the former, Johnson y. -Wood, 84 Mo. 507; Bank v. Patterson’s Admr., 11 U. . 2994 Noel v, Gaines, 68 Mo. 658; Bunce Admr. v,.Reck,, 43 Mo. 280; Menne v, Neumeister, 25 Mo. App. 305. [A), Circumstances surrounding the execution of a contract and a supplementary one may be looked to, to ascertain the intention of the parties, or, as the. Westlake Construction Company could have compelled the surety on Ellinger’s bond to, finish the contract for the contract price of $1500,-.there was.no: inducement for it>-in,enter into the-modified; agreement unless it. expected work to be done for that , price*. The. surrounding, -circumstances must be looked to to ascertain intention of parties Koehring v. Mendngkoii, 61 Mo. 403; Pratt v. Langston, 111 Mp, App. 102; Knoepker y-. Bedel, 116. Mo. App. 67;, Nor&yke y. Martuon, 155 Mo. 643. .. (oj A contract modified, .amid circumsfances.,whic:k imply, or warrant the belief that no additional expense will result from the change, will not warrant a construction that the contracting party intended to add to the' amount of the original consideration. Boqdy v, Rut-land, 3 Rlateh. 25, Fed. Cases. No. 1635; Weay Bros, y, Schnelzer, 92, Mo, App-, 314; Gibbons v. United States,, 15 Of., Claims. 193; Gallagher y. Hist, CplumMfij dd gt. Claims 564. 1(g , , , ; y;;*
    
      
      Charles M. Reeves and. William H. Davies for respondent.
    (1) Wbat is clear needs no interpretation, and oral testimony is inadmissible to contradict or vary tbe terms of a written contract. 1 Greenleaf on Ev., sec. 275; 7 Am. and Eng. Ency. Law (1 Ed.), 91. (2) A person signing a contract is conclusively presumed to know its contents and to accept tbe same, and all prior negotiations are merged in tbe writing. Leicber v. Keeney, 98 Mo. App. 394; Crim v. Crim, 162 Mo. 544. (3) A party may change or modify tbe terms of a written contract by a subsequent agreement, and when this is done be must declare on tbe agreement as modified. Lanitz v. King, 93 Mo. 513; Munroe v. Perkins, 9 Pickering. 298; Lattimore v. H'arson, 14 Johnson 330; 1 Greenleaf on Ev., sec. 303. (4) In tbe absence of fraud or mistake, a complete written contract is a merger of all antecedent agreements between tbe parties and affords conclusive evidence of tbe knowledge and assent on tbe part of tbe parties to all its contents terms and conditions. Huber Mfg. Co. v. Hunter, 87 Mo. App. 50; Bishop on Contracts, sec. 319.
   NORTONI, J.

This is a suit on a contract. Tbe breach alleged relates to tbe defendant’s refusal to pay for certain materials and labor furnished under tbe contract. Tbe plaintiff recovered and defendant appeals.

Tbe facts were all agreed to by tbe parties. Tbe trial was bad before the court without a jury. There was no verbal testimony introduced and no instructions asked or given. Tbe only question therefore worthy of consideration relates to tbe construction of tbe modified contract presented in tbe agreed statement of tbe case. Tbe facts stipulated between the parties are as follows:

“I. That the said Frank Simmons is the regular appointed assignee of W. I>. Ellinger.
“II. That said W. D. Ellinger entered into a contract with the Westlake Construction Company, dated the eleventh day of October, 1907, in which he agreed to furnish and install all of the mill work, cabinet work, office partitions, rails, enclosures, window frames, sash, door frames, doors, wainscoting, shelves, drawers, butts, locks, drawer pulls, setting, finishing and painting of same, complete in the building mentioned in said contract; also all glass and glazing except Novus glass, being everything called for in specifications covering the work required to complete the additions and alterations to the Mechanics-American National Bank building as called for in the specifications and plans for this work made by A. B. Groves, Architect, the specifications being attached to said contract.
“III. That on the sixth day of January, 1908, the parties, plaintiff and defendant, entered into the modified agreement as per exhibit attached and herein set out (of which the following is a verbatim copy, with the exception of the first paragraph thereof, which simply names Westlake Construction Company as party of the first part; Frank Simmons, assignee of W. D. Ellinger, as party of the second.part; Lafayette National Bank as party of the third part, and the American Bonding Company as party of the fourth part) :
“ ‘1. The work mentioned and described in said contract shall be taken up and fully completed by the said Simmons, party of the second part. Said Simmons shall begin the work of installation not later than the ninth day of January, 1908, and it shall be completed and fully performed within thirty secular or working days thereafter, provided he is not delayed by said party of the first part.
^ ¡..'^aiid pWrtíf óf thé first'part shall rpdy th’6 said party of the second'-part, o¥oh ‘hit ordefy for nil' labor ajid for ail /materials require$ to complete the, work hescfibedm the* forégóinq cofitráéi¡, and Matt yvalie such ^ayménés 'fbeélclyf, ón ' %aiwfdd<y\ of ' eaéfi' 'tpeeicl' ‘^aicL party of'.tfie second part ¡áhaíl submit to said party of fliefirst part á Retailed pay, roll for dll tahor ana InVoices or vouchers[for, all materialsf for wMch hefdésires to be paid. ' N'1 "
( ' “ lá. Saifi partypi ‘thb first part ufidertákés to assist; tbé said party of the' second part in obtaining from the Union Electric Light & Power Company, or the íiáclede P'ówér , Cpinbariy,, the necessafy. inbiiye power . .. " - ■ " oíN/.'.O' yj JoNo-Uvi signee, so fat as such .power is necessary for the. performance ox the work described m the foregoing contract. foregoing co: ■ y n if. °<»i' if. ,
,» '• “:/4¡ When said party of the first part shall have paid. fo.v all ,materials and'all labor, so required by said party- of■ the second part, then it-shall ,pay the pntire balanee due under. the foregoing contract to the Lafayette Bank-, party of the third part hereto. , ,
j f-s .'v.f All-.- of the foregoing -terms being complied with*-- the party of the first' part .-waives any right to demand ,liquidated»damages ; under , the ; terms, of., the foregoing contracts p-.o.í? ..vi; W-n-ms hr-,.,' <t>,}
{i,y, ndtiiSia-further .agreed .by „the .parties hereto thaf' tihei; said .Frank Simmpms, as, assignee, as -plaintiff herein, has expended on said contract the sum of ?fwp thousand pirn hundred fifty-seven, dollars and thirty-sewn cents. (§2,3,57.87),, and.¡that,the said Westlake Opn-s traction Company, under clause two of said modified jttgree^ienit^slias.,admitted thatúf ,is Andebfed, to ¡said-., as-signee in the sum of fifteen hundred .dollars :(§3.5.00,:);, and that it has paid to said plaintiff, on account of same, the sum of fourteen hundred seventy-one dollars and thirty cénts (§1471.30), leaving a balancé due said plaintiff Of-twéhty-eight dollars - and séVéhty rent's (§28.70), which balancé sáid d'é'féhdañt káS téffdéréd to plaintiff, add which tender said plaintiff lieréin admits, but the said defendant refused and still1 refuses tb pay to Said plaintiff the stun, of Sik hhndted eighty-six dollars and sévén cefftS (f680:07), the bálaínhé1 V^hieh sáid plaintiff still claims i’S dhfe' tinder"Said' c'óntfá'éf, and which the defendant herein denies, ánd up’On the foregoing facts-the ease is'shbrnitted to-the-'cOunt,'sit-ting as a jniy, upon 'the issnes joined herein, With leave to either party to except to any rulings of the boOrt On propositions Of lkW that may be moved' by -either as applicable to the casé ánd take á bill Of exceptions in respect thereof.” (The italics are our oWn.) ' ‘ff

From other of the facts stipulated, it appears that W. D. Ellingér had tákéh the contract tó fhrnish the material and labor and installed the work mentioned for the Westlake Construction Company in the Mechanics-American National Bank Building theh' being 'conStruétedby the Westlaké Construction Cempáhy WhO was the gehéral contractor. Under thé 'Original contract referred to, Ellinger had agreed to' complete the wotk by thé 10th day Of December, Í9Ó7,- and'if not completed by- that date, to pay ten donará-per day as liquidated damages for each day h'e wáS iff hirrear thereafter. Upon completion Of the work,1 Ellihgeh Wá!s '• tó reéeiVé Üftéén liúndréd dollars ’ás totáí compensation therefor. ’ unring the-time the Work’ was -progressing, lie was entitled, nnder thé original éohtráet, to receive payments monthly thereon from the general eontraetor, the Westlake Construction Company; however, : th’át cOfflpany retained thé right tó withhold at álí ' fimés fifteen per bent of' the amounts due ElllfigSr.' Ellifigef had executed a bond in thé Sum of séV'eh hundred áhd fifty dollars fOr the faithful éxécntion’Of his contract and the1 AmeriéUn Bonding Company was his surety thereon.

After the work had been partially completed, it seems Ellinger became insolvent and executed an assignment for the benefit of creditors under our statutes. The present plaintiff, Mr. Simmons, is his assignee under that assignment. This is the condition which obtained when the parties executed the modified contract now in judgment. It appears from the modified agreement that Simmons, Ellinger’s assignee, agreed to take up the work and complete it on or before the 9th day of February, 1908, whereas under the original contract it should have been completed by the 10th day of December, 1907.

It appears, too, from a careful reading of the modified contract that the Westlake Construction Company was willing to make concessions to the end that this work should be completed. This is natural enough, indeed, for it appears that company was the general contractor for the building and was no doubt required to hasten its completion. The Westlake Construction Company stipulated in the modified contract, among other things, to waive all right to demand liquidated damages under the terms of the original contract with Ellinger. The liquidated damages referred to were stipulated at the rate of ten dollars per day for default in event Ellinger failed to complete the work on December 10th, 1907. It also appears that the Westlake Construction Company, as a further concession to induce Mr. Simmons, the assignee, to complete the contract, was willing to and did obligate itself to use its best offices to assist him in obtaining from the Union Electric Light & Power Company or the Laclede Power Company the necessary motive power for operating the machinery in the factory of Ellinger, to the end that the work contemplated might be pushed forward. These matters are referred to as elucidating an expressed intention on the part of the Westlake Construction Company to make concessions in order that the works mentioned in the contract might be pushed forward. The modified contract revealing the Westlake Construction Company-in this attitude at the time of its execution elucidates to some extent the stipulation with respect to the agreement on its part to pay for all labor and materials used in installing the work.

Now, it is true while the original contract stipulated fifteen hundred dollars as the full compensation which Ellinger was to receive for material and work, nothing whatever is said in the modified contract indicating that that amount should control between the present parties. The modified contract was entered into by different parties, for the law imposed no obligation on the assignee to complete the Avork although the assigned estate in his hands was liable for the breach of the original contract. The modified contract stipulates in section II thereof that the party of the first part, who is the Westlake Construction Company, shall pay the party of the second part, Mr. Simmons, the plaintiff, or his order, for all labor and for all materials required to complete the work described in the foregoing contract and shall make such payments weekly on Saturday of each week. It appears from the same stipulation that Mr. Simmons, the plaintiff, was required to submit to the Westlake Construction Company a detailed pay roll for all labor and invoices or vouchers for all materials for which he desired to be paid. Why was the plaintiff required to submit such detailed statements for all labor and all materials unless the defendant construction company expected to pay for the same? It seems that if the parties had intended that the work should be completed for fifteen hundred dollars as total compensation, some reference would have been made thereto in the modified contract, as the chief and principal modification of the original contract consists' in stipulating about the matter of payments. We are required, in interpreting unambiguous contracts, to accord English words their usual and ordinary meaning. When we do this, we see no escape from the conclusion that the agreement expressed on the part of the Westlake Construction Company to pay for all labor and for all materials required to complete the work means all labor and all materials used therein notwithstanding the fact that the former contract had fixed the total sum at fifteen hundred dollars.

Section IV of the modified contract seems to contemplate that there might be a profit earned in completing the work and stipulates that when the Westlake Construction Company had paid for all materials and all labor required, then it should pay any balance due under the contract to the Lafayette Bank. This also tends to show that, while the Westlake Construction Company was in a humor to make concessions in order that the work might be speedily completed, it again expressed an agreement to pay for all materials and all labor required.

We believe the contract was properly interpreted at the trial and that the judgment should be affirmed. It is so ordered.

Goode, Jconcurs; Reynolds, P. J., dissents.  