Cavender v. B. Johnson & Son

• Decision Date: 09 May 1919
• Docket Number: No. 2357.,2357.
• Citation: Cavender v. B. Johnson & Son, 212 S.W. 53 (Mo. App. 1919)
• Parties: CAVENDER v. B. JOHNSON & SON.
• Court: Missouri Court of Appeals

212 S.W. 53

CAVENDER v.B. JOHNSON & SON.

No. 2357.

Springfield Court of Appeals. Missouri.

May 9, 1919.

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

Action by James M. Cavender against B. Johnson & Son.Judgment for plaintiff, and defendants appeal.Judgment affirmed.

O. L. Munger, of Piedmont, and' J. L. Moore and Garry H. Yount, both of Van Buren, for appellants.

S. L. Clark, of Van Buren, and J. M. Carnahan, for respondent.

BRADLEY, J.

Plaintiff sued to recover damages for breach of contract.Upon trial below before the court and a jury, plaintiff recovered judgment for $150, and defendants appealed.

Plaintiff charges in his petition that—

"On the ____ day of January, 1917, he entered into a contract with defendants to take out of Current river at Chicopee, Mo., for defendants, 100,000 railroad ties, in consideration that defendants would furnish the said ties in Current river at Chicopee, to be furnished by the defendants and taken out by plaintiff within the year 1917, and defendant agreed to pay to plaintiff for taking out of Current river and piling on the railroad switchyards at Chicopee, Mo., the sum of 2 cents per tie for each 6×8 tie and 2½ cents per tie for each 7×9 tie.Plaintiff states that the defendants furnished, and the plaintiff took out of Current river and piled on the railroad switch yards at Chicopee, Mo., under said contract, 45,000 ties, for which defendants paid to plaintiff the price and sum agreed upon as aforesaid; but plaintiff states that on the 4th day of September, 1917, the said defendants quit furnishing ties for this plaintiff to take out as per their contract as aforesaid, and failed and refused to furnish the balance of the ties for plaintiff to take out and pile on the switchyards at Chicopee, Mo., the balance of the ties as per their contract as aforesaid, and plaintiff says that he was at all times ready and willing to comply with the terms of the contract on his part, and performed all the conditions of the contract oft his part, but that defendants failed and refused to comply with the contract as aforesaid, to plaintiff's damage in the sum of $550."

Plaintiff explained the contract as follows:

"About the 1st of January, 1917, I was pulling ties for Graham.I owned a farm down the river, and I asked Graham if he would let me have the contract for the year to pull ties for B. Johnson & Son; and he said he would take the matter up with the company and let me know, and he said he had about 100,000 on the river, and that they would buy more.Some two or three weeks from that time saw Graham and asked about the matter, and wanted to know about the contract, as I wanted to start to farming if I didn't work, and he told me to go ahead; that I could have the contract."

Under this contract plaintiff removed from the river 46,987 ties, and piled them on the switchyards at Chicopee.

Graham, the agent of defendants, denied that plaintiff had any contract for any number of ties, but stated that he employed plaintiff to take ties out of the river at the price stated.The only difference is that plaintiff claims that he had a contract to take out about 100,000 ties during 1917, while defendants insist that the contract was not for any certain number of ties," and was to cover no particular time, and that plaintiff's unsatisfactory work was the cause of his discharge.

Defendants make several assignments of error, but frankly say that they are relying principally on the proposition that plaintiff sued on a certain definite contract to take out 100,000 ties during the year 1917, and that the proof did not establish such a contract.Appellants say in their brief that the trial court permitted a recovery upon a quantum meruit, and not upon the contract pleaded.Plaintiff pleaded a contract to take out of the river 100,000 ties during 1917, and established by his evidence a contract to take out during the year about 100,000 ties.We do not agree that this is such a variance as to be fatal, nor do we agree that any principle of quantum meruit is directly involved.Plaintiff either had a contract to take out about 100,000 ties during the year as he contends, or he was employed by defendants at so much per tie, without reference to time or number of ties, as defendants contend.The jury adopted plaintiff's version,...