Baldwin v. Desgranges

• Decision Date: 13 January 1947
• Docket Number: 39721
• Citation: 199 S.W.2d 353,355 Mo. 959
• Parties: Joseph G. Baldwin, Appellant, v. P. A. Desgranges and Della Desgranges
• Court: Missouri Supreme Court

199 S.W.2d 353

355 Mo. 959

Joseph G. Baldwin, Appellant, v. P. A. Desgranges and Della Desgranges

No. 39721

Supreme Court of Missouri

January 13, 1947

Rehearing Denied February 10, 1947.

Appeal from Butler Circuit Court; Hon. Randolph H. Weber Judge.

Affirmed in part and reversed in part.

Tedrick & Tedrick and Sam M. Phillips for appellant.

(1) Defendant is guilty of laches in standing by, failing to scale the lumber he delivered after his suspicions were aroused, permitting it to be manufactured into another product and shipped away and in making no claim for this "over-run" or "over-cut" until long after this lawsuit was filed. Smith v. Citizens Bank, 106 S.W.2d 45, 232 Mo.App. 906. (2) Equity will not aid one to obtain relief from a position in which he was placed by his own negligence. Equity aids the vigilant, not those who sleep on their rights. Thompson v. Lindsay, 145 S.W. 472 242 Mo. 53; Equity Key No. 64 and No. 73; Deicke v Rondebush, 138 S.W.2d 768; Townsend v. Maplewood Ins. & Loan Co., 173 S.W.2d 911, 351 Mo. 738. (3) After defendant's suspicions were aroused, if so, as to the scale of Jim Sims, then defendant was guilty of negligence in failing to scale his lumber before delivery to plaintiff, which should bar his recovery herein. Defendant failed to do what a reasonably prudent man would have done under the same or similar circumstances and thereby cast this case into the realm of conjecture and speculation. Morrow v. Mo. Pac., 123 S.W. l.c. 1039, 140 Mo.App. 200; (4) The fact that defendant did not keep a record of his lumber scale and present it in court raises a presumption against him. Where weaker evidence is offered when stronger evidence is within the parties power, the evidence offered should be viewed with distrust. 32 C.J.S., p. 1079, sec. 1035; 23 C.J., p. 40, sec. 1784; 22 C.J., p. 115, sec. 55 & Missouri cases in footnote No. 84; Leonard v. St. Joe Lead Co., 75 F.2d 390. (5) Positive proof is required where it appears from the nature of the case that it might possibly have been had. Belyus v. Wilkinson, Gaddis & Co., 178 A. 181, 115 N.J. Law 43; Affirmed, 182 A. 873, 116 N.J. Law 92. (6) Direct or positive evidence has greater weight than opinion evidence or surmises or estimates or an expert's speculation. 32 C.J.S., p. 1072, sec. 1031 & case in footnote 61, 62 et seq.; 23 C.J., p. 38, sec. 1779, cases cited in footnote 29. (7) Evidence is to be weighed according to the proof which it was in the power of one side to have produced, and in the power of the other side to have contradicted. 23 C.J., p. 37, No. 1779 and Missouri cases cited, n. 25, p. 38; 32 C.J.S., p. 1070, sec. 1031, n. 47, citing; Munsill v. A., T. & S.F. Ry., 234 S.W. 376. (8) Defendant's failure to keep a scale of the lumber, after he became suspicious and to produce that scale in court, raises the presumption against him that if he had done so the evidence would have been unfavorable to him. 22 C.J., p. 115, sec. 55, Mo. case in footnote 84; Evidence, Key No. 75, Mo. Digest; Burnsides v. Doolittle, 24 S.W.2d 1011, 324 Mo. 722. (9) There is no reliable definite testimony as to how much lumber to which plaintiff would be entitled, could have been sawed from defendant's pretended "log scale." It is all vague, imaginary, uncertain, unreliable and speculative. Compensatory damages cannot rest on guess-work, conjecture, or speculation. White v. K.C. Service Co., 193 S.W.2d 60; Mundis v. Kelchner, 176 S.W.2d 535, 227 Mo.App. 805; 17 C.J., p. 758, sec. 80; 17 C.J., p. 759, sec. 91; Morrow v. Mo. Pac., supra. (10) Defendant says that he complained to plaintiff as to the weekly settlement checks being too small, but he continued to accept and cash each check, this was accord and satisfaction of all matters in controversy between the parties and prevents defendant from now recovering on his counter claim for lumber he asserts that was delivered and for which he was not paid by plaintiff. Ellis v. Mansfield, 256 S.W. 165, 215 Mo.App. 292; McCormick v. City, 166 Mo. 315; Publishers v. Pepsin, 119 S.W. 38, 137 Mo.App. 472; Tebbe v. Williams, 71 S.W.2d 52; 1 C.J., p. 551, sec. 71. (11) As against defendant's speculations as to how many feet of lumber the logs would produce and how much lumber was delivered to plaintiff, we introduced in evidence records showing exactly how many feet were delivered and paid for. In the absence of a positive showing to the contrary these records are presumed to be correct and that Sims acted honestly scaling the lumber received. The law never presumes fraud but the presumption is in favor of innocence and honesty. Hendricks v. Calloway, 211 Mo. 536, 111 S.W. 60; Mo., etc., Trust Co. v. Third Natl. Bank, 133 S.W. 357, 154 Mo.App. 89. (12) It is presumed that a private citizen proceeds by right and not by wrong and that every one does his duty. The presumption of innocence applies in civil cases. City of Maysville v. Truex, 139 S.W. 390, 235 Mo. 619; Brigham, etc., v. Zolman, 220 S.W. 911; Rice v. Detroit, etc., 176 S.W. 1113; Evidence Key No. 60. (13) When the proof merely shows that a party has suffered damage that may be due to several causes, for only one of which the other party could be liable "and that which of these was the causa causaus is a matter of pure conjecture in such case, there can be no recovery. And to get his case to the jury it devolved upon the plaintiff (in this case the defendant), to get it out of the fog of conjecture and speculation." Nevinger v. Haun, 197 Mo.App. 416, 196 S.W. 39; McGee v. Wabash Railroad, 214 Mo. 1. c. 530; Snyder v. St. L.S.W., 72 S.W.2d 504; Pedigo v. Roseberry, 340 Mo. 724, 102 S.W.2d 1. c. 608. (14) Defendant cannot recover for speculative future profits after he shut his mill down, for the reason that as he testified in the Nixon case, he shut the mill down because he did not have timber enough to keep it running, and in this case he failed to plead or prove that he did have timber available sufficient to keep his mill running during the time for which he claims future profits, whether he could or could not get such amount of timber is left to pure conjecture and guess-work. Courts will not award damages based on guess-work and speculation. See authorities under Point (9). (15) Damages which are uncertain, contingent or speculative in their nature cannot be made the basis of recovery. 17 C.J., sec. 86, p. 753, n. 46; Morrow v. Mo. Pac., 123 S.W. 1034. (16) Defendant's statement that he could earn a net profit of $ 9 per thousand feet sawn by his mill is merely the expression of his opinion and not sufficient proof of that alleged fact. Defendant did not introduce in evidence his books of account showing his gross income and expenses over a reasonable length of time prior to his shut down, which would be the way to prove his net profits. Viernow v. City of Carthage, 123 S.W. 67, 139 Mo.App. 276; Gardner v. Springfield, etc., 135 S.W. 1023; Cantrell v. Knight, 72 S.W.2d 196; Hardesty v. Scheaffer, 139 S.W.2d 1031; Grant v. St. L., I.M. & S. Ry. Co., 130 S.W. 80, 149 Mo.App. 306. (17) Injunction will lie to prevent repeated trespasses or wrongful interference with business. Union Electric v. Graffenreid, 78 S.W.2d 571, 229 Mo.App. 622; Dening v. Graham, 59 S.W.2d 699, 227 Mo.App. 717; Nelson v. Kelley, 128 S.W. 832, 145 Mo.App. 110; Hobart-Lee Tie Co. v. Stone, 117 S.W. 604, 135 Mo.App. 438; Reiley, etc., v. Burk, 41 S.W.2d 909; Southwest Pump, etc., v. Forslund, 29 S.W.2d 165, 225 Mo.App. 262; Purcell v. Journeyman Barbers, etc., 133 S.W.2d 671, 234 Mo.App. 842; Injunction Key No. 55. (18) The general rule permits injunctive relief for repeated or continuing trespasses, even in cases where the damage is nominal and no single trespass causes irreparable injury. 43 C.J.S., sec. 64, p. 525. (19) Acts committed without just cause that interfere with the carrying on of a plaintiff's business and destroy his custom, credit, or profits, to his irreparable injury may be injoined. 43 C.J.S., sec. 138, p. 683. Injunction will restrain breach of contract. Little Rock Surgical Co. v. Bowers, 42 S.W.2d 367, 227 Mo.App. 744; National, etc., v. Triumph, etc., 13 F.2d 6. (20) If plaintiff was interfering with the defendant, his mill and employes and causing him damages then it was the duty of the defendant to take proper steps, such as pointed out above within a reasonable time, to minimize that damage. Defendant however, did nothing to minimize his losses if any. Under the authorities he can recover only such damages, if any, as he sustained in spite of his efforts to lessen his loss. He made no effort in that direction and hence there is no basis on which to calculate any damages at all sustained by him. 17 C.J., p. 771, sec. 99, Mo. cases in footnote 39 to which may be added the following cases not in footnote: Peck v. Kansas City, 96 Mo.App. 212; Smith v. Carter, 118 S.W. 527, 136 Mo.App. 529; Weller v. Mo. Lbr. Co., 161 S.W. 853, 176 Mo.App. 243; Craig v. McNichols, 187 S.W. 793; Saxony Mills v. Huck, 208 S.W. 868. (21) A person injured by a breach of contract ordinarily must use reasonable efforts to mitigate the damages. 25 C.J.S., sec. 34, p. 502. (22) No recovery may be had for losses which the person injured might have prevented by reasonable efforts and expenditures. 25 C.J.S., sec. 33, p. 499; 17 C.J., p. 767, sec. 96, Mo. cases, footnote 24, p. 768. (23) The efforts which the law requires of a person injured by a tort or breach of contract to avoid what damages he can include the making of reasonable expenditure to such end. 25 C.J.S., sec. 33, p. 502; Lokey v. Rudy Co., 285 S.W. 1028. (24) The efforts which the injured party must make to avoid the consequences of the wrongful act or omission, need, however, only be reasonable under the circumstances of the particular case, his...