Browning v. North Missouri Cent. Ry. Co.

• Decision Date: 19 June 1920
• Docket Number: No. 21901.,21901.
• Citation: 284 Mo. 439,224 S.W. 748
• Parties: BROWNING v. NORTH MISSOURI CENT. RY. CO.
• Court: Missouri Supreme Court

224 S.W. 748

284 Mo. 439

BROWNING v. NORTH MISSOURI CENT. RY. CO.

No. 21901.

Supreme Court of Missouri, in Banc.

June 19, 1920.

Rehearing Denied October 1, 1920.

Appeal from St. Louis Circuit Court, M. Hartmann, Judge.

Action by E. T. Browning against the North Missouri Central Railway Company. From a judgment for plaintiff, defendant appeals. Reversed and remanded.

See, also, 188 S. W. 143.

This is an action for a breach of a contract. Both sides so denominate it. The first count alleges a contract between plaintiff and defendant by the terms of which plaintiff was to furnish to defendant certain railroad ties and poles for its proposed electric railroad from Mexico, Mo., to North Jefferson City, Mo. With the views that we have of the case the fuller details of the contract will serve no good purpose. Nor are the subsequent agreed modifications of the contract, as alleged, material for our disposition of the case. Suffice it to say in this count of the petition the plaintiff charges:

"Plaintiff now shows to the court that, as his duty was under said contract, he delivered to the defendant on defendant's right of way on or before the 1st day of May, 1910, 3,474 No. 1 ties of the kind and character in said specifications mentioned, and 421 No. 2 ties of the kind and character in said specifications mentioned,. whereby defendant became indebted to him in the sum of $2,489.65, for which on the 4th day of May, 1910, defendant executed and delivered to him an acceptance, a copy of which is herewith filed, marked Exhibit D, and made a part of this petition.

"That on or before the 30th day of June, 1910, plaintiff, under and by virtue of the terms of said contract, delivered to the defendant on defendant's right of way 4,638 No. 1 ties and 400 No. 2 ties of the dimensions and character described in said specifications, whereby defendant became indebted to plaintiff in the further sum of $3,234.70, for which defendant executed and delivered to plaintiff acceptances of date July 7, 1910, copies of which are hereto attached, marked respectively Exhibit E and Exhibit F, and made a part hereof.

"That on or before June 30, 1910, under and by virtue of the terms of said contract, plaintiff delivered to defendant in the town of Columbia, Mo., 1,011 No. 1 ties and 76 No. 2 ties of the kind and character required in the specifications attached to said contract, whereby defendant became indebted to the plaintiff in the further sum of $731.56, and for which defendant executed and delivered to plaintiff an acceptance of date July 7, 1910, a copy of which is herewith filed and marked Exhibit G and made a part of this petition.

"That on or before July 31, 1910, under and by virtue of the terms of said contract, plaintiff delivered to defendant at Columbia, Mo., 1,478 No. 1 ties and 147 No. 2 ties o$ the kind and character contracted for by defendant, for which defendant became indebted to plaintiff in the further sum of $1,090.30, for which defendant executed and delivered to plaintiff acceptances of date of July 12, 1910, and July 16, 1910, copies of which are herewith filed, marked Exhibit H and Exhibit I, and made a part hereof.

"That on or before September 20, 1910, under and by virtue of the terms of said contract, plaintiff delivered to defendant on various points on defendant's right of way 11,473 No. 1 cross-ties of the kind and character contracted for by the defendant, for which defendant then and there became indebted to plaintiff, and bound to pay him at the rate of 65 cents for each tie, and on or before the same day plaintiff delivered to defendant, on defendant's right of way, 1,882 No. 2 cross-ties of the kind contracted for, for which defendant then and there became indebted to plaintiff in the sum of 55 cents for each tie, amounting in the aggregate to $8,532.55, that defendant has refused to inspect or accept said ties, and that said ties are worth at the nearest market point 45 cents for the No. 1 ties and 22 cents for the No. 2 ties, and that it will cost plaintiff $2,374.64 to remove said cross-ties from said right of way to such nearest market point, and the plaintiff shows to the court that the greatest sum that he can realize upon the sale of said ties at the nearest market points is $3,202.25, which being subtracted from the contract price agreed to be paid to plaintiff by defendant leaves due him his damage upon said ties the sum of $5,330.30; wherefore plaintiff shows that defendant became indebted to him, by reason of the premises, for ties delivered and accepted in the sum of $7,464.85, and for damages for the ties so delivered, but not inspected or accepted, in the sum of $5,287.23.

"That before July 1, 1911, plaintiff could have furnished within the time required by said contract 136,326 cross-ties of the kind and character provided for in plaintiff's contract with the defendant and 6,074 No. 2 cross-ties of the kind and character provided for in plaintiff's contract with defendant, and that plaintiff was then and there and at all times able, ready, and willing to deliver the same, but that defendant stopped and prevented the delivery thereof, as will more fully hereinafter appear, and plaintiff shows to the court that the market values of said ties at the nearest market points are, to wit, 45 cents per tie for No. 1 ties and 22 cents per tie for No. 2 ties, for., which price the plaintiff could have furnished said ties, and that plaintiff will lose in the sale of said ties the difference between the cost of furnishing and delivering the same to defendant, to wit, the sum of $29,269.62.

"That before July 1, 1911, plaintiff could have procured and furnished to the defendant, under and by virtue of his said contract and supplements thereto, in order to fulfill the same, 2,500 cedar poles of the dimensions of 7 inches at the small end by 40 feet in length and of the kind and character mentioned in plaintiff's...