Hancock v. Buckley
| Decision Date | 15 June 1885 |
| Citation | 18 Mo.App. 459 |
| Parties | DAVID A. HANCOCK, Respondent, v. CHARLES BUCKLEY, Appellant. |
| Court | Missouri Court of Appeals |
APPEAL from Saline Circuit Court, HON. E. L. EDWARDS, J.
Affirmed.
Statement of case by the court.
The plaintiff sued defendant for failure and refusal to pay him for pasturage furnished from April 15 to October 9, 1882, for the grazing of sixty head of cattle, at 55 cents per head per month. Plaintiff's evidence tended to show that he contracted to furnish pasturage for the cattle, for the season, or so long as they did well, at the rate aforesaid. That the cattle were turned into the pasture April 15, 1885, and kept there till the 15th of June following, when defendant took them away. That the grass was good during the season and amply sufficient to sustain the cattle, with all others which he had permitted to be turned into the pasture. That he took the other cattle in also, but at no time during the season did he permit enough of other cattle to be turned in to have prevented a sufficiency for defendant's.
Plaintiff's petition is as follows: That about the 10th day of April, 1882, he being in the possession of a large tract of enclosed pasture, or grass land, in the county of Pettis, in this state, that defendant entered into a contract with plaintiff, whereby it was agreed between them that plaintiff should furnish to defendant, upon said grass or pasture land, grazing for sixty head of cattle, from the 15th day of April, 1882, until the end of the grazing season of 1882, or as long as there should be upon said land a sufficient quantity of good grass for the grazing of said cattle; the defendant to put said sixty head of cattle on said land and keep them there as long as the grass should be good and sufficient during said grazing season of 1882, and pay plaintiff therefor the sum of fifty-five cents per head for said cattle per month, the money to be paid at the end of the season, or when the grass should fail. That in pursuance of said agreement, the defendant, on the said 15th day of April, 1882, placed in the plaintiff's said pasture the said sixty head of cattle, and that from that day until the 9th day of October, 1882, plaintiff furnished good grass in abundance for all said sixty head of cattle; that, afterwards, plaintiff demanded of defendant, for the pasture of said cattle, the sum of one hundred and ninety-one and forty-one hundredths dollars, the amount due the plaintiff for the pasture of said cattle under said agreement; but that defendant fails and refuses to pay the same, and no part thereof has been paid. Plaintiff asks for judgment for $191 40-100, and interest.
Defendant objected to any testimony as to the condition of the pasture after June 15, when he took the cattle away, for the reason that as “plaintiff has only sued for pasturage actually furnished to defendant and not for damages for breach of contract, for failure of defendant to use and graze such grass.” This objection, and other similar ones, being overruled, defendant excepted. Instructions were refused for defendant on the same theory of his objection to the testimony. The jury returned into court the following verdict: “We, the jury, find for the plaintiff $125.40, dividing entire costs equally between the parties.--W. B. Laurie, Foreman.” Afterwards, plaintiff filed a motion to enter a regular judgment on the verdict and for costs, treating that portion of the verdict as to costs as of no effect. Judgment was accordingly entered.
WALLACE & CHILES, for appellant.
I. The court erred in overruling the objections of the defendant to the evidence of witnesses offered by plaintiff to prove the quality and sufficiency of the grass in plaintiff's pasture after June 15, 1882. The suit is for pasturage furnished to defendant, under an alleged contract, between April and October, 1882, and it was incompetent for plaintiff, after showing that he had furnished no grass after June 15, 1882, to offer evidence of the condition or sufficiency of the grass after that time, with a view of recovering therefor after such date. A party can not sue upon one cause of action and recover for another. Clements v. Yeates, 69 Mo. 623; Ensworth v. Barton, 60 Mo. 511; Eyerman v. Cemetery Association, 61 Mo. 489. A party can not declare on a contract and recover on a quantum meruit. And, for the same reason, he can not declare for a cause of action ex contractu and recover on a cause of action ex delecto. Same authorities; also, Huston v. Scale Works, 56 Mo. 416; Harris v. Railroad Co., 37 Mo. 397; Waldhier v. H. & St. J. Railroad, 71 Mo. 514; Buffington v. Railroad, 64 Mo. 246; Beck v. Ferrara, 19 Mo. 30; Link v. Vaughan, 17 Mo. 585.
II. If incongruous causes of action cannot be united in one count of a petition, much less can a cause of action different from that alleged be made merely by evidence and instructions. Duncan, adm'r, v. Fisher, 18 Mo. 403; Jamison v. Cipher, 35 Mo. 483; Parker v. Rhodes, 79 Mo. 88; Bliss on Code Pleading, part I, sect. 112-120, note 1.
III. The court erred in the instructions given for plaintiff [which predicate the averments of the petition as true, and assert right of recovery, notwithstanding the taking of the cattle out before the end of the season]. These instructions, in effect, direct the jury to entirely ignore and disregard the fact that defendant's cattle were taken out of plaintiff's pasture at the end of two months. They authorize the jury to find for plaintiff for grass and pasturage not furnished to, received, or used by defendant for nearly four months after June 15, 1882. These instructions were erroneous for the same reason that such evidence complained of by defendant was improperly admitted. See authorities cited in point I of this brief. The jury was manifestly misled by such improper evidence, and improper instructions predicated therein.
IV. The court also manifestly erred in sustaining the motion of plaintiff for the whole amount specified in the verdict of the jury, and for all costs. The verdict was as follows: “We, the jury, find for the plaintiff one hundred and twenty-five and forty one-hundredths dollars dividing the entire costs equally between the parties.” The plaintiff made no objection to the verdict when it was received by the court and the jury discharged, thus acquiescing in the same and its terms. The court also erred in overruling the motion of defendant for new trial, and in arrest of judgment. See Bagby v. Emberson, 79 Mo. 139; State ex rel., etc., v. Rombauer, 44 Mo. 590.
V. The statute providing for the granting of new trials comprehends such cases as this. The verdict, on its face, as matter of law, shows that the jury made a “mistake” as to their powers and duties in providing for an equal division of the costs between the parties. As defendant did not and has not objected to the provisions of the verdict in regard to the division of costs, he was guilty of no negligence in failing to object to same when received by the court; but plaintiff is estopped to object after the jury was discharged. Pope v. Mooney, 40 Mo. 104; State ex rel., etc., v. Rombauer, 44 Mo. 590; Fredwell v. Laffoon, 77 Mo. 26; Savoni v. Brashear, 46 Mo. 345; Tucker v. Railroad, 54 Mo. 177.
VI. As to the propriety and effect of the affidavit of jurors--not to impeach but to show a “ mistake” in the verdict as to the costs, and their belief in their powers when uninstructed as to the law, the common law doctrine is thus declared: “The better opinion is, that the affidavits of jurors are not to be received to impeach a verdict, but they may be admitted in exculpation of the jurors, and in support of their verdict.” Dana v. Tucker, 4 Johnson (N. Y.) 487.
No brief on file for respondent.
Opinion by ELLISON, J.
Defendant's objection is that as plaintiff's petition is for furnishing him pasture for his cattle, during the season, from the middle of April till about the middle of October, and the proof was that he put his cattle in on April 15, and took them out on June 15, following, plaintiff did not furnish him pasture longer than June 15. And that, under the petition, his recovery ought to have been limited to the contract price up to June 15, and not afterwards. That if further recovery was sought plaintiff should have asked, in a separate count, for damages on account of defendant's failure to use the pasture.
There is no doubt that there can not be a suit upon one cause of action and a recovery on another; the number of adjudications on this subject, in this and other courts, makes this a familiar rule. But it is not a question of easy solution, often, as to what cases will fall within that rule. The one before us is not without difficulty. It turns really upon the word “furnish.” Plaintiff agreed to furnish him pasturage from April till October, and did put him in possession of the pasture by allowing, or having him turn in on April 15, and seeing that the pasturage, in quantity sufficient, was there till October. This, we think, was furnishing the pasturage as contemplated by the petition. In effect, plaintiff, on April 15, the day defendant turned in, says to him, here is the pasture I agreed to furnish you for this season; I now furnish it to you: I turn it over to you.
The fact that after having it furnished to him he...
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