Bay v. Bedwell

• Decision Date: 26 October 1929
• Docket Number: No. 4587.,4587.
• Citation: 21 S.W.2d 203
• Parties: BAY v. BEDWELL.
• Court: Missouri Court of Appeals

21 S.W.2d 203

BAY v. BEDWELL.

No. 4587.

Springfield Court of Appeals. Missouri.

October 26, 1929.

Appeal from Circuit Court, Shannon County; E. P. Dorris, Judge.

Action by J. L. Bay against P. R. Bedwell. Judgment for plaintiff, and defendant appeals. Reversed and remanded.

Wm. P. Elmer and E. W. Bennett, both of Salem, for appellant.

S. A. Cunningham, of Eminence, for respondent.

BAILEY, J.

Plaintiff filed a petition in the circuit court of Shannon county in two counts. The first count set up a parol contract by the terms of which, as alleged, plaintiff sold defendant all the pine saw timber standing on certain lands in Dent county, Mo., together with 12 selected oak trees. In consideration of such sale, defendant agreed to execute and deliver a warranty deed conveying to plaintiff free of incumbrance a certain 160 acres of land in Dent county. As a further consideration, plaintiff alleged that he was owner of a grocery and feed store, and that defendant owned and managed a sawmill in the immediate vicinity of plaintiff's store and place of business: that defendant agreed "to do all in his power to cause all persons employed by him to patronize plaintiff's store and purchase all their feed, groceries and merchandise from plaintiff and to exert his influence over such employees in such manner as to cause them to patronize plaintiff's store exclusively." It is then alleged that, in pursuance of said contract, defendant received from plaintiff 158,000 feet of pine and oak logs of the total value of $948; that defendant wholly failed to comply with the contract on his part; that he failed to deliver plaintiff a deed to the 160 acres, and did not exercise his influence over his employees to cause them to trade at plaintiff's store, but did influence them to patronize other stores. He then asked for $948 damages for timber removed.

The second count is framed as an ordinary petition to recover the purchase price of said pine and oak timber received by defendant from plaintiff, and, in plaintiff's brief, is termed a count to recover on "quantum meruit." Defendant filed a demurrer to the petition, which was sustained as to the first count but overruled as to the second count. Defendant then filed an answer to the second count of plaintiff's petition, in which he pleaded that he sold plaintiff 160 acres of cut-over land for the pine timber and 12 oak trees as set out in plaintiff's petition; that he delivered a warranty deed to said 160 acres to the Bank of Bunker, at Bunker, Mo., conveying to plaintiff said lands; that there was no other contract or consideration for said timber; that plaintiff at no time demanded performance of said contract by defendant and defendant, "tenders into court a warranty deed to plaintiff to said land."

Plaintiff filed a reply setting up as a part of the contract and consideration for said timber that defendant agreed to use his influence in securing his employees at his sawmill to trade with plaintiff at his store, and further alleged failure on the part of defendant to carry out such agreement. It will be noted that this reply sets up the same facts relied on in the first count of plaintiff's petition as to which the trial court had sustained a demurrer. The reply further denied that the deed to the 160 acres was executed and delivered to plaintiff until tendered in court.

Defendant filed a motion to strike out that portion of plaintiff's reply relating to "a claim for damages on an alleged contract of profits arising from the sale or losses on sales of merchandise from plaintiff's store, for the reason that the reply sets up a new cause of action." It is further charged that the damages claimed are speculative and such alleged contract constitutes no defense to defendant's answer. This motion was overruled and exceptions saved. The case was tried to a jury resulting in a verdict for plaintiff and against defendant, for "the sum of $400.00 and deed to the (160) one hundred and sixty acres in original contract." Defendant has appealed.

It is first urged that the trial court erred in overruling defendant's motion to strike out that part of plaintiff's reply relating to the alleged agreement of defendant to use his influence to induce his workmen to trade at plaintiff's store. It is fundamental that the essential terms of a contract must be certain or capable of being rendered certain through applying ordinary canons of construction to the contract or by reference to some other agreement or matter, in order to be enforceable. 13 C. J. 266, § 59; 6 R. C. L. 643, § 59. No damages can be recovered for the breach of an indefinite, vague, and uncertain provision in a contract. Hubbard v. Turner Dept. Store, 220 Mo. App. 95, 278 S. W. 1060; Burks v. Stam, 65 Mo. App. 455; Blaine v. Publishers, George Knapp & Co., 140 Mo. 241, 41 S. W. 787.

In other states provisions in contracts similar to that involved in the instant case have been held to be void....