Barnes v. Knott

• Decision Date: 10 August 1920
• Citation: 224 S.W. 1033,205 Mo.App. 399
• Parties: ALEX BARNES, Respondent, v. CHARLES KNOTT, Appellant
• Court: Missouri Court of Appeals

224 S.W. 1033

205 Mo.App. 399

ALEX BARNES, Respondent, v. CHARLES KNOTT, Appellant

Court of Appeals of Missouri, Springfield

August 10, 1920

Appeal from Circuit Court of Mississippi County.--Hon. Frank Kelly Judge.

JUDGMENT RENDERED.

Judgment rendered.

Gallivan & Finch for appellant.

(1) A plaintiff cannot sue upon one cause of action and recover on another. Recovery must always depend up the cause of action stated in the petition. St. Louis v. Wright Contracting Co., 210 Mo. 491; Henry County v. Citizens Bank, 208 Mo. 209, 224; Carson v. Cummings, 69 Mo. 332. (2) A judgment in excess of the amount sued for as set forth in the petition is error and such judgment cannot stand. Moore v. St. Louis S. F. Ry. Co., 117 Mo.App 384; Middendorf v. Bonaventure, 150 Mo.App. 536-37; Balch v. Myers, 65 Mo.App. 427; Impkamp v Transit Co., 108 Mo.App. 664; Powell v. Harrell, 92 Mo.App. 412; Cauthorn v. Berry, 69 Mo.App. 408, 412; Gervin v. St. Louis Refrigerator Co., 66 Mo.App. 315; Paulson v. Collier, 18 Mo.App. 583, 605; Moore v. Dixon, 50 Mo. 424; Smith v. Royse, 165 Mo. 654, 658; 23 Cyc. 795. (3) Both under the contract and the law it was defendant's duty to reduce the damages caused by plaintiff's breach of contract and the expenses defendant incurred in good faith for such purpose are properly chargeable to plaintiff. 17 C. J. 806; Mitchell v. Violette, 203 S.W. 218; Gilwee v. Pabst, 195 Mo.App. 490, 193 S.W. 886; Myers v. Adler, 188 Mo.App. 607; Coffman v. Railroad, 183 Mo.App. 622; Wallace v. Workman, 187 Mo.App. 113, 173 S.W. 35; Niehaus v. Gillanders, 184 S.W. 949; State ex rel. v. Powell, 44 Mo. 436.

Boone & Lee for respondent.

(1) Where the judgment is technically wrong the appellate court may modify it or affirm accordingly. State ex rel. v. Trust Co., 209 Mo. 494; Henry County v. Salmon, 201 Mo. 136. (2) Mere irregularities in the judgment which are not prejudicial to the defendant are not reversible error. Edwardson v. Garnhart, 56 Mo. 81; West v. Bailey, 196 Mo. 517. There was conversion of the timber on the Hunter land in this case. Davis v. Barnes, 3 Mo. 137; Watson v. Gross, 112 Mo.App. 615; Shewalter v. Mo. P. Ry., 84 Mo.App. 589; State v. Omaha Bank, 59 Neb. 483.

BRADLEY, J. Sturgis, P. J., and Farrington, J., concur.

OPINION

BRADLEY, J.--

Plaintiff filed his petition in three counts. In the first he alleges that in September, 1912, he contracted with defendant for the sale of not more than 200,000 feet of cypress timber which he was to cut from the Amberg land, and deliver in a reasonable time at the mouth of Lee-Rowe ditch; that the price agreed upon was $ 7 per thousand; that plaintiff delivered 63,669 feet, and that defendant accepted this timber, but failed to pay for it. Plaintiff prayed judgment on this count for $ 573.02. In the second count plaintiff alleges that in the spring of 1914, he sold and delivered to defendant at Lee-Rowe ditch certain maple, oak, cottonwood and ash logs of the value of $ 513.85, and that defendant failed to pay for these, and judgment was asked for their alleged value. In the third count plaintiff alleges that in the year 1914 he was the owner of certain ash, cypress, cottonwood and other timber, and that defendant, had taken and converted this timber, to plaintiff's damage in the of $ 2127.23 for which sum judgment was asked.

Defendant answered by general denial, and a counterclaim. The counterclaim goes to the third count of plaintiff's petition. Defendant alleges that on September 18, 1913, he entered into a written contract with plaintiff for the purchase of certain timber, as follows: Oak No. 1, at $ 15; No. 2, $ 8; cypress at $ 9; cottonwood at $ 12; ash No. 1, at $ 16; and No. 2, at $ 8. That defendant was to pay one-half less the stumpage when the timber was cut and rafted, and ready for delivery, and the balance when delivered at the mouth of James bayou; that it was provided in the contract that if plaintiff failed to deliver the timber at the mouth of said bayou that defendant had the right to take possession of said timber, employ the necessary help, and charge the expense of taking care of said timber to plaintiff, and pay the said expenses out of the proceeds of the timber. That defendant under the contract paid plaintiff the sum of $ 2081.31; that before defendant took possession of said timber, and after the $ 2081.31 had been paid, and after the high water had come and gone defendant demanded that plaintiff deliver the timber as agreed, and that plaintiff failed to do so, and that defendant, in order to save said timber, and prevent what he had paid from being a total loss, took charge of the timber as provided in the contract. That the necessary expenses incurred in handling said timber were $ 2240.41: that what he had paid to plaintiff, and what he was compelled to pay to get the timber out amounted to $ 4321.72, and that he realized only $ 3693.68 out of the timber, and he asked judgment against plaintiff in the sum of $ 628.04. Defendant filed with his counterclaim the contract on which he relies; also an itemized statement of charges against plaintiff from August 22, 1913, to October 27, 1915, which itemized statement contains all that defendant claims to have furnished plaintiff in the way of supplies, and money, and said statement also contains the items of expense incurred in taking care of the timber under the contract. Defendant also filed an itemized statement of credits due plaintiff as claimed by him (defendant) amounting to $ 3693.68. The reply denied the new matter, and particularized concerning some specific items.

The cause was filed in New Madrid county, but went on change of venue to Mississippi county, and was there referred to O. W. Joslyn, Esq. of the Mississippi county bar as referee. The referee filed a report February 20, 1918, disposing of all counts in the petition, and also the counterclaim, and found after allowing defendant's counterclaim that plaintiff was entitled to judgment in the sum of $ 932.39, and recommended judgment in that sum. The court sustained defendant's exceptions to the referee's report, and referred the cause to the referee. The referee heard further evidence and filed a supplemental report July 15, 1919, in which he recommended that plaintiff recover on the first count $ 483.09; second count $ 267.18; third count $ 4094.21; and that defendant recover on his counterclaim $ 4112.92. Exceptions were filed to the supplemental report, but overruled, and judgment was rendered on the whole case in favor of plaintiff for $ 732.46, and defendant appealed.

The timber mentioned in the first and second counts of plaintiff's petition came from what is designated as the Amburg land. The referee recommended, and the court gave judgment on these two counts in the sum of $ 751.17. Defendant admitted that he received from plaintiff logs from the Amburg land amounting to $ 721.94, and in his statement here says that "the difference being so small this feature of the case will not be considered."

The timber mentioned in the third count of plaintiff's petition came from what is designated in the record as the Hunter land in the contract of September 18, 1913. The referee found that plaintiff working under this contract cut a large amount of timber from the Hunter land, cut float roads, and made other preparations toward floating this timber to the mouth of James bayou, the place of delivery; that during the progress of the work defendant was furnishing plaintiff with money under this provision of the contract: "This timber to be paid for, one-half, less the stumpage, when these logs are cut, measured and rafted, and the float roads prepared, and the balance when the logs are delivered." The contract provided that plaintiff was to cut, raft and deliver to the mouth of James bayou "when there was sufficient water." It also provided that "the cutting of these logs is to begin at once, and to be prosecuted diligently as weather and other conditions will permit, until the delivery is completed. And if I fail to fulfill my part of this agreement I hereby authorize Charles Knott and Co. to take charge of this timber, do the necessary work and charge the same to my account."

Defendant in his brief gives his theory of the case as follows:

"As we view this case a proper decree under the pleadings and evidence can only be rendered by a consideration of the first two counts of plaintiff's petition and defendant's counterclaim. In the counterclaim appellant gave Barnes credit for the logs received from the Hunter land and also from the Amberg land. The amount of credit given Barnes for the Amberg timber was $ 721.94, and the amount of credit the referee found was due him was $ 751.17. The difference of $ 29.23 should be given as an additional credit on defendant's counterclaim, and judgment rendered for appellant and against respondent for the amount due appellant as shown by his counterclaim, to wit, $ 628.04, less the sum of $ 29.23 or $ 598.71. This will dispose of the whole matter fairly and give both parties credit for everything due each of them--will put the loss for damaged and lost timber on the one responsible for it, and not on the one who sought to save it."

As we understand the record the disposition urged by defendant would result in allowing plaintiff nothing for what he did towards getting the Hunter timber ready for delivery. We cannot accept this view. The contract provided in effect that if plaintiff failed to fulfill his pare of the contract that defendant was to take charge and do what plaintiff should do and charge the expense to plaintiff. If the timber when delivered at the mouth of James bayou was worth more than it cost defendant to deliver it, then he, under the contract, would be required to...