Cantrell v. Knight

• Citation: 72 S.W.2d 196
• Decision Date: 02 April 1934
• Docket Number: No. 5290.,5290.
• Parties: CANTRELL v. KNIGHT.
• Court: Missouri Court of Appeals

72 S.W.2d 196

CANTRELL v. KNIGHT.

No. 5290.

Springfield Court of Appeals. Missouri.

April 2, 1934.

Rehearing Denied June 6, 1934.

Appeal from Circuit Court, Greene County; Warren L. White, Judge.

"Not to be published in State Reports."

Action by J. P. Cantrell, trustee for the J. P. Cantrell Oil Company, against J. L. Knight. Judgment for plaintiff, and defendant appeals.

Affirmed.

Hamlin, Hamlin & Hamlin and Haymes & Dickey, all of Springfield, for appellant.

Fred A. Moon, of Springfield, for respondent.

BAILEY, Judge.

This is a suit for damages for the breach of a certain exclusive sales contract. The amended petition filed after a demurrer to the original petition had been sustained, alleged in substance that J. P. Cantrell, as trustee for the J. P. Cantrell Oil Company, a corporation (all the stock of which was owned by J. P. Cantrell, his wife and daughter) entered into a written contract with defendant, July 17, 1925 (which contract was set out in hæc verba); that thereafter, on September 23, 1926, J. P. Cantrell, for the benefit of the Cantrell Oil Company, entered into a further written agreement with defendant (which is also set out in full); that on May 20, 1928, J. P. Cantrell, for the benefit of said oil company, entered into yet another written contract with defendant (which is likewise copied in the petition). The petition failed to state the legal effect of these three contracts. However, it appears from the first contract pleaded, that J. L. Knight purchased from J. P. Cantrell an auto laundry and service station in Springfield, Mo., and in the same contract Cantrell repurchased from Knight a one-half interest in said station for the sum of $2,500; that said contract, among other things, provided that all gasoline and petroleum products used and sold at said place of business should be purchased from the J. P. Cantrell Oil Company, at "second party's prevailing tank wagon prices prevailing at Springfield, Missouri." The contract of September 23, 1926, was a bill of sale by the terms of which Cantrell sold to Knight, for the sum of $1,500, his one-half interest in the auto laundry and filling station, and provided among other things that: "In consideration of the said Cantrell selling his said interest to the said Knight at a reduced price the said Knight agrees that so long as he continues in business at said place he will handle and sell only gasoline, oils, kerosene and other petroleum products, except Mobiloil and greases, handled and sold by the J. P. Cantrell Oil Company of Spring-field, Missouri, which shall be sold to him at J. P. Cantrell Oil Company Tank Wagon prices." The contract of May 20, 1928, purports to alter the contract of September, 1926, and provides that Cantrell shall pay Knight $500 in cash and a monthly rental of 2 cents per gallon for all gasoline sold by the J. P. Cantrell Oil Company to Knight during the preceding month. Said contract further provides that Knight shall buy all gasoline and petroleum products from the J. P. Cantrell Oil Company, except certain oils which Knight should have the privilege of handling. The contract further provides for liquidated damages in the sum of $1,500, should either party violate its terms. After setting out said contracts, the petition further alleged that defendant failed to comply with the terms of said contracts, in that he purchased petroleum products from others and finally, in December, 1928, defendant breached the same by taking out plaintiff's pumps and refusing to buy all gasoline and other petroleum products from said J. P. Cantrell Oil Company. It was further alleged that in the execution of all of said contracts, plaintiff acted for and in behalf of the J. P. Cantrell Oil Company, with the full knowledge and consent of all parties concerned. It was further alleged that plaintiff had been damaged in excess of the liquidated damages specified in the last contract and judgment is asked for the full amount.

Defendant first filed a motion to strike the amended petition from the files on the ground that it constituted a departure from the original petition which nowhere alleged the trusteeship pleaded in the amended petition. Error is charged in the action of the trial court in overruling this motion. The point is not briefed by defendant. The contracts themselves indicate that the real party in interest was in fact the J. P. Cantrell Oil Company. J. P. Cantrell, as trustee, had a right to bring the suit in his own name (see section 699, R. S. Mo. 1929 [Mo. St. Ann. § 699, p. 906]), and we do not think the amended petition, alleging the trust relationship, changed the cause of action under the circumstances. Johnson v. Murray (Mo. App.) 289 S. W. 977, loc. cit. 984. Moreover, since defendant answered over, after his motion to strike and demurrer had been overruled, and went to trial on the merits, any departure between the amended petition and the original petition was waived. Nudelman v. Thimbles, 225 Mo. App. 553, 40 S.W.(2d) 475.

The demurrer to the petition was on the ground, among others, that the petition wholly failed to state a cause of action. It is urged that the petition merely alleges the situation of the parties, and then copies the three contracts into the petition but fails to plead the legal effect of said contracts, and that therefore the demurrer should have been sustained. Good pleading requires that the ultimate facts constituting a cause of action should be stated in the petition and not evidentiary matters. The contracts relied upon in this case should therefore have been pleaded according to their legal effect and not in hæc verba. The demurrer might properly have been sustained on that ground. Wilson v. Chicago G. W. R. Co. (Mo. App.) 190 S. W. 22, Reilly v. Cullen, 159 Mo. 322, 60 S. W. 126. However, defendant failed to stand on his demurrer, but answered over and went to trial on the merits. While that would not constitute a waiver of failure of the petition to state a cause of action, we think there are sufficient other allegations in the petition well pleaded to save the petition from the charge of wholly failing to state a cause of action. The petition is also susceptible of the construction "as stating what the evidence pleaded tends to prove." Reilly v. Cullen, supra, 159 Mo. loc. cit. 329, 60 S. W. 126, 127; Birdsong v. Jones, 222 Mo. App. 768, 8 S.W.(2d) 98, loc. cit. 100.

Defendant filed an answer admitting the execution of the contracts sued on, but charged that the last-named contract of date May 20, 1928, annulled and abrogated the other contracts, especially that part pertaining to the terms of purchasing gasoline and other products from plaintiff. The answer further denied each and every other allegation in the petition. Other defenses set up in the answer were stricken out on motion of plaintiff. The trial was to a jury and resulted in a verdict and judgment for plaintiff from which defendant has appealed.

Plaintiff offered evidence tending to prove that plaintiff and defendant operated under the contracts of 1926 and 1928 until the 10th day of December, 1930, at which time, according to plaintiff's evidence, defendant breached the contract by refusing to buy gasoline and other petroleum products from plaintiff and by buying such products from another company. Plaintiff also introduced in evidence the record of the purchases of gasoline made by defendant from said other company as shown by his sworn statements filed with the city oil inspector of Springfield; said statements covering the period from December 10, 1930, to May 14, 1931, at which time the amended petition was filed. Plaintiff also introduced evidence tending to prove the amount of the net profit of the J. P. Cantrell Oil Company, for the year preceding the 10th day of December, 1930, from sales of gasoline, oil, etc., to defendant, under the contract; also evidence tending to prove what the net profit of the J. P. Cantrell Oil Company would have been on the gasoline, oils, etc., purchased by defendant from said other company after December 10, 1930, until May 14, 1931. There was also introduced in evidence by plaintiff parts of defendant's answer which had been stricken out on plaintiff's motion, which tended to prove an admission on the part of defendant that he had abrogated and rescinded the contract. Defendant offered no evidence.

At the close of the case the trial court, at plaintiff's request, gave an instruction to the jury as follows: "The court instructs the jury that the agreements introduced in evidence were entered into for the benefit of the J. P. Cantrell Oil Company, and that under said agreements the defendant was obligated to buy all gasoline, kerosene, greases and other petroleum products, except Quaker State Oils, from the J. P. Cantrell Oil Company, and that the defendant has breached said agreements by refusing since the 11th day of December, 1930, to buy all such products from the said Oil Company, and that said Oil Company by reason thereof, is entitled to recover the profits, if any, which you may find from the evidence the said Oil Company in reasonable certainty would have earned from December 11th, 1930, to May 14, 1931, not to exceed $1500, had the defendant purchased the gasoline used by him during that period from the J. P. Cantrell Oil Company." Defendant urges that this instruction was erroneous for the reason that it peremptorily directed a verdict for plaintiff, leaving to the jury only the question of the amount of the damages. Defendant relies upon the rule so clearly stated in Cluck v. Abe, 328 Mo. 81, 40 S.W.(2d) 558, 559, as follows: "In a case where the allegations of the petition are denied by the answer, and the plaintiff offers oral evidence tending to support the allegations of the petition, the defendant is entitled to have the jury pass upon the credibility of such evidence even though he should offer no evidence himself. The court has no right to tell...