85 S.W. 946 (Mo.App. 1905), Grymes v. Liebke Hardwood Mill and Lumber Company

Citation:85 S.W. 946, 111 Mo.App. 358
Opinion Judge:NORTONI, J.
Party Name:GRYMES, Respondent, v. LIEBKE HARDWOOD MILL AND LUMBER COMPANY, Appellant
Attorney:Roberts & Corbett for appellant. Brewer & Collins for respondent.
Case Date:March 07, 1905
Court:Court of Appeals of Missouri
 
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Page 946

85 S.W. 946 (Mo.App. 1905)

111 Mo.App. 358

GRYMES, Respondent,

v.

LIEBKE HARDWOOD MILL AND LUMBER COMPANY, Appellant

Court of Appeals of Missouri, St. Louis

March 7, 1905

Appeal from Pemiscot Circuit Court.--Hon. Henry C. Riley, Judge.

AFFIRMED.

STATEMENT.

Plaintiff brought his suit in the circuit court of Pemiscot county, declaring on a written contract theretofore entered into between defendant and himself whereby he sold and agreed to deliver to defendant, and defendant agreed to receive, on the bank of the Mississippi river, near Stewart's Landing, certain ash timber or saw logs of kinds and quality described, at the prices therein named; alleged full performance on his part and that defendant had taken up and paid for a portion of said timber but declined and refused to accept, receive and pay for the remainder thereof, and asked judgment for the breaches of the contract assigned.

Defendant filed an answer to said petition.

Afterwards, plaintiff filed his amended petition setting up the same written contract alleged in the original petition, which provided for the delivery of eighty thousand feet of good smooth ash logs, etc., at the prices and within the time named, at said landing, and also alleged a subsequent parol enlargement of said written contract between the same parties whereby defendant had requested him to put out or deliver at said place all the ash logs he could get thereabouts of the kind, description and dimensions in said prior written contract mentioned, at the same price, and that the defendant would pay the same prices therefor; alleged that in compliance with said written contract, subsequently enlarged by said parol contract, he had delivered at said point ninety-one thousand and five hundred feet of logs and that defendant had paid him part thereon but refused to accept and pay for the remainder of said logs to his damage in the sum of $ 576.52, for which he asked judgment.

The amended petition was filed on the fifteenth day of December, on the fourth day of the term. No further answer was filed thereto. No objection of any kind appears in the record to the filing of the amended petition at the time. Two days thereafter, on the sixth day of the term, December seventeenth, the cause came on for trial. It seems the court and the parties treated the original answer filed as an answer to the amended petition also and on the issues thus made up the case was tried to the court without a jury. No objection was made to the sufficiency of the amended petition nor was the Statute of...

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