Bagnell Timber Co. v. Missouri, K. & T. Ry. Co.

• Decision Date: 31 May 1913
• Citation: 157 S.W. 497
• Court: Missouri Supreme Court
• Parties: BAGNELL TIMBER CO. v. MISSOURI, K. & T. RY. CO.

157 S.W. 497

BAGNELL TIMBER CO. v. MISSOURI, K. & T. RY. CO.

Supreme Court of Missouri, Division No. 1.

May 31, 1913.

1. APPEAL AND ERROR (§ 1099) — SUBSEQUENT APPEAL — QUESTIONS CONCLUDED — QUESTION FOR JURY.

A ruling on a former appeal that the record afforded ample evidence on which to submit to the jury the question whether the alleged contract for the sale of ties was made between plaintiff and defendant is conclusive upon a subsequent appeal, in which the record is exactly the same.

2. APPEAL AND ERROR (§ 1099) — SUBSEQUENT APPEAL — QUESTIONS CONCLUDED — INSTRUCTIONS.

A reversal and remand upon a former appeal for failure of the court to give two instructions at plaintiff's instance is conclusive as to the correctness of such instructions on a subsequent appeal, identical except as to changes necessary to transform them from declarations of law into instructions.

3. EVIDENCE (§ 271) — SELF-SERVING DECLARATIONS — NOTICE.

Where it appeared that the original draft of the lien claim and notice thereof was prepared by plaintiff's attorney as for a sale of ties to a partnership, and that upon ascertainment of the real facts he filed a new notice showing that the sale was made to a partnership and to defendant railroad company as joint purchasers, such second notice was not objectionable as a self-serving declaration.

4. EVIDENCE (§ 383) — RELEVANCY — WHOLE OF TRANSACTION.

Where defendant in an action on a contract had used part of the transaction including plaintiff's lien claim and notice, the plaintiff was entitled to have the whole of it submitted to the jury.

Appeal from Circuit Court, Pettis County; Hopkins B. Shain, Judge.

Action by the Bagnell Timber Company against the Missouri, Kansas & Texas Railway Company. Judgment for plaintiff, and defendant appeals. Affirmed.

See, also, 180 Mo. 420, 79 S. W. 1130.

This suit was brought against the defendant railroad company and the firm of Graham & Miller to recover a balance of $5,422.50, alleged to be due under a joint contract made by said defendants with plaintiff for railroad ties delivered to defendant railroad company, for which the plaintiff prayed judgment and also for a lien therefor upon the roadbed and track belonging to the defendant. Process was not served upon the firm of Graham & Miller, and the cause was dismissed as to them. The answer of the railroad company denied that it had any contract with plaintiff for the purchase of these ties, either jointly or severally, and averred that its codefendants, Graham & Miller, were its general tie contractors, and that they had entered into the contract with plaintiff, the detailed terms and conditions of which it did not know and with which it had no concern; that it paid to its said codefendants the purchase price of the ties delivered to it by them. Issue was joined by reply, and the case was tried upon an agreed statement of facts and upon oral testimony. This stipulation, while not denying the correctness of the sum claimed to be due as a balance by plaintiff on account of ties delivered to defendant railroad company and used by it, expressly recited that nothing therein contained should be construed as an admission concerning the nature of the contract, or as to who were the parties to the contract under which said ties were furnished and delivered by plaintiff, and left the rights of the parties to be determined under the issues joined by the pleadings and the evidence respectively adduced by them.

Upon the trial the circuit court rendered a judgment against the defendant,...