Bagnell Timber Company v. Missouri, Kansas & Texas Railway Company

• Decision Date: 29 March 1912
• Parties: BAGNELL TIMBER COMPANY, Appellant, v. MISSOURI, KANSAS & TEXAS RAILWAY COMPANY
• Court: Missouri Supreme Court

145 S.W. 469

242 Mo. 11

BAGNELL TIMBER COMPANY, Appellant, v. MISSOURI, KANSAS & TEXAS RAILWAY COMPANY

Supreme Court of Missouri, First Division

March 29, 1912

Appeal from Pettis Circuit Court. -- Hon. Louis Hoffman, Judge.

Reversed and remanded (with directions).

J. H Bothwell and Charles E. Yeater for appellant.

(1) Notwithstanding this action was brought on a contract alleged to have been made by plaintiff with defendant railway company and the firm of Graham & Miller, and the evidence fails to prove that both said defendants were parties to the contract the plaintiff may recover against the railway company, if the evidence shows that it alone was a party to such contract. Sec. 1981, R. S. 1909; Campbell v. Hood, 6 Mo. 216; Finney v. Allen, 7 Mo. 419; Brown v Pearson, 8 Mo. 161; Crews v. Lackland, 67 Mo. 621; Dissenting opinion of Valliant, J., herein, 180 Mo. 468; Sec. 2772, R. S. 1909; 1 Territorial Laws, 1816, p. 430; R. S. 1825, p. 215, sec. 4; Moore v. Otis, 18 Mo. 118; Gates v. Watson, 54 Mo. 590; State ex rel. v. Tate, 109 Mo. 270; Glen v. Hunt, 120 Mo. 340; Logan v. Billings, 107 P. 415; Sawin v. Kenny, 93 U.S. 289; Witters v. Sowles, 34 F. 119; Murray v. Elright, 56 Ind. 362. (2) A former decision of this court will be overruled and reversed, if cogent and convincing reasons are shown, particularly, as in this case, where former rulings of this court were inadvertently overlooked and overruled, and where express remedial statutes were inadvertently nullified. Bank v. Donnell, 195 Mo. 570; Machinery Co. v. Ramlose, 231 Mo. 527; Gracy v. St. Louis, 221 Mo. 6; Padgett v. Smith, 205 Mo. 125; Wilson v. Beckwith, 140 Mo. 382; Rutledge v. Railroad, 123 Mo. 131; Bird v. Sellers, 122 Mo. 32; Boone v. Shackelford, 66 Mo. 497; Hamilton v. Marks, 63 Mo. 172; Chambers v. Smith, 30 Mo. 158; Bealy v. Smith, 158 Mo. 522. (3) The court in its former decision ruled that "there is not one word of evidence in this case, that in the remotest or slightest degree tends to show that the plaintiff had any contract whatever with Graham & Miller, of any kind, either joint or several." The railway company is standing here on this former decision, and the plaintiff since that finding of fact by this court acquiesces in it. It necessarily and logically follows, that the sale was made to the railway company, which received the ties direct from the plaintiff, and the acts of the parties in carrying out the sale contract, shown by the testimony of Bagnell, Stevens and Miller, establishes the fact that the plaintiff and the railway company were the only parties to the transaction, which is of such a nature that the actual conduct of the parties furnishes a complete construction and definition of the contract. The second judgment based on the same pleadings and evidence as in the former trial, should therefore be reversed, and the former opinion should be overruled, and the first judgment should be affirmed, as ought to have been done in the first instance, as being for the right party on the undisputed evidence. Wilson v. Beckwith, 140 Mo. 389; State ex rel. v. Vaile, 122 Mo. 33.

Lee Hagerman, George B. Jackson and Montgomery & Montgomery for respondent.

(1) This cause was heard and decided by this court, 180 Mo. 420. The evidence was carefully and fully considered, a lengthy narrative and analysis of the evidence made, covering thirty-two pages of the report and nine pages of this devoted to the testimony of the main witness for the appellant. No oversight or mistake of any matter material to the decision of the case was made by the court in its statement or decision. The cause was reversed and remanded for a new trial and the appellant submitted the case to the lower court upon the old bill of exceptions, upon which the cause was first presented to this court, so that there was not the least change in the evidence. This court, in its decision of the case, held that there was no evidence of any contract with the defendant railway company to support a verdict. No cogent or convincing reasons are shown why the court should open up the case and review its former conclusions. Under these circumstances the court should treat its judgment upon the facts as res adjudicata and closed. Gracey v. St. Louis, 221 Mo. 1; May v. Crawford, 150 Mo. 524; Viertel v. Viertel, 212 Mo. 573; Shoe Co. v. Ramlose, 231 Mo. 527; Baker v. Railroad, 147 Mo. 152. Under the findings of fact by the lower court, in following the mandate of this court, that there was no evidence against the defendants to support a verdict against it, the error of the court, in its instruction, if there be any, becomes wholly immaterial. (2) It is only necessary to read the opinion of this court and the opinion of Valliant, J., to satisfy the court, that on the former hearing it did decide that there was a total failure of proof as to any contract with the defendant railway company. (3) The case was properly decided upon the facts when here the first time. Bagnell, who was the only witness who testified about the contract, does not make out any case; he so directly contradicts himself as to wholly destroy his testimony. All his dealings with the subject-matter after the alleged contract was made to show clearly, that up to the time he filed his corrected lien paper, he regarded Graham & Miller as sole contractors with plaintiff, and not the defendant railway company. They but confirm the judgment of the court that there was no evidence of any contract with defendant railway company.

OPINION

WOODSON, J.

In the year 1900, the plaintiff instituted this suit against the defendant railway company, and L. G. Graham and J. T. Miller, partners, to recover the sum of $ 5421.50, a balance due it, under a contract alleged to have been made and entered into by and between them, whereby the former agreed to and did sell and deliver to the latter 50,000 railroad ties, for the price of forty-three cents per tie for first class, and thirty-three cents per tie for culls.

The answer of the railroad company was very lengthy, consisting of a number of specific pleas, most of which are immaterial in so far as this appeal is concerned. One of them denied that the company either jointly or severally entered into the contract with the plaintiff mentioned in the petition; but alleged the fact to be, that Graham & Miller were independent tie contractors, and that they as such purchased the ties mentioned from the plaintiff, and sold and delivered them to the defendant company, for which it paid them the full purchase price. The answer also contained a plea of res adjudicata.

No service was had on Graham & Miller, and the cause as to them was dismissed.

A trial was had, which resulted in a judgment in favor of the plaintiff for the amount sued for. After moving unsuccessfully for a new trial, the defendant duly appealed the cause to this court.

In due time the cause was submitted to this court, and in an opinion written by Marshall, J., the judgment of the circuit court was reversed for the reason stated in the opinion, that "there is not one word of evidence in this case that in the remotest or slightest degree tends to show that the plaintiff had any contract whatever with Graham & Miller of any kind, either jointly or severally." Proceeding, the court in substance held that as to the defendant railway company, a recovery could not be maintained for the reason that the petition declared upon a joint contract made and entered into by and between the plaintiff, the one party, and the railroad company and Graham & Miller, the other party, while the evidence failed to show that Graham & Miller ever entered into a contract with plaintiff, either jointly or severally, to furnish the ties mentioned, which the court held was a total departure, and not simply a variance between the allegations of the petition and the proof. The cause was remanded to the circuit court for another trial.

The foregoing is a brief statement of the case when first presented to this court, but a full statement of it may be found in Bagnell Timber Co. v. Railroad, 180 Mo. 420.

When the cause was remanded to the circuit court, a jury was waived and the parties stipulated as to certain facts not here material, but it was expressly agreed that said stipulations should not be construed as an admission concerning the nature of the contract or as to who were the parties to the contract under which the ties were furnished to the railroad company.

By agreement, the plaintiff introduced a transcript of the evidence introduced by it, at the former trial, and rested.

The defendant company then introduced its evidence and rested; and thereupon the plaintiff introduced certain evidence in rebuttal.

The plaintiff requested the court to give to the jury three instructions, numbered one, two and three. The court gave the third, which is irrelevant to the questions here presented, and for that reason will receive no further notice. The court refused number one as asked, but modified same and gave it in said modified form, and refused number two. To all of which action of the court the plaintiff duly excepted.

Instructions numbered one and two as asked, read as follows:

"1. The court sitting as a jury declares the law to be that if it appears from the evidence that on or about April 20, 1899 the plaintiff made an agreement with defendant railway company and the firm of Graham & Miller [or with the railway company alone] to furnish and deliver to them or to said railway company at St. Louis, Sedalia and Wagoner at and for the price of forty-three cents per tie for first class and thirty-three cents per tie for cull ties, and did so furnish and deliver 49,320 first class and five cull ties and that defendants or said railway company have...