Bay v. Bedwell, 4587.

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

21 S.W.2d 203 BAY
v.
BEDWELL. No. 4587. Springfield Court of Appeals. Missouri. October 26, 1929.

[21 S.W.2d 204]

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.

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