Chapman v. The Kansas City, Clinton & Springfield Railroad Company
| Decision Date | 13 March 1893 |
| Citation | 21 S.W. 858,114 Mo. 542 |
| Parties | Chapman et al. v. The Kansas City, Clinton & Springfield Railroad Company, Appellant |
| Court | Missouri Supreme Court |
Appeal from Dade Circuit Court. -- Hon. D. P. Stratt on, Judge.
Reversed and remanded.
Wallace Pratt, C. B. McAfee and J. C. Cravens for appellants.
(1) This action is one at law, based upon a contract sued upon introduced in evidence and relied upon by plaintiffs, which contract provides, "that the ties are to be subject to inspection by any inspector defendant might be pleased to furnish." Plaintiffs themselves testified that defendants accepted and paid for all the ties that passed inspection; therefore plaintiffs cannot recover on said second assigned breach. Pierce on Railroad Law, 381; Wood v. Railroad, 39 F. 52; Railroad v. Bradley 44 N.W. 1; Kihlberg v. United States, 97 U.S. 398; McAvoy v. Long, 13 Ill. 147; Railroad v Northcote, 15 Ill. 49; McAirley v. Carter, 22 Ill. 53; Railroad v. Spurck, 24 Ill. 587; Snell v. Brown, 71 Ill. 133; Coey v. Lehman, 79 Ill 173; Lull v. Krof, 84 Ill. 225; Dinsmore v. Livingston Co., 60 Mo. 244; Neeman v. Donoghue, 50 Mo. 492; Estate v. Railroad, 56 Mo. 282. (2) The whole of plaintiffs' testimony on second breach admitted over the objections and exception of the defendant is an attack upon the good faith, fairness and sufficiency of the inspections by which the ties they seek pay for were rejected. And there being no allegation in the petition of bad faith, unfairness or fraud in the inspections, it was reversible error to admit such testimony. Wood v. Railroad, 39 F. 52, supra, and authorities cited; McAvoy v. Long, 13 Ill. 147; Railroad v. Northcote, 15 Ill. 49. (3) Even if the pleadings had been so framed as to have permitted an inquiry into the conduct of the inspectors, still all the testimony of plaintiffs on that point ought to have been excluded or not admitted on defendant's objections that the witnesses were not shown to be experts, or at all qualified to give opinions as to the quality of ties or use of ties in railroad tracks. Nelson v. Ins. Co., 71 N.Y. 453; Muldowney v. Railroad, 36 Iowa 472; Walton v. Railroad, 40 Mo.App. 544; Hart v. Railroad, 84 N.Y. 56; Teerpenning v. Ins. Co., 43 N.Y. 283; Wright v. Williams, 47 Vt. 222. (4) The court committed reversible error in giving its fifth and seventh instructions over defendant's objections and exceptions. Streeter v. Streeter, 43 Ill. 155; McAvoy v. Long, 13 Ill 147; Railroad v. Northcote, 15 Ill. 49; Sigsworth v. McIntire, 18 Ill. 127, and authorities cited.
B. G. Boone, Mann & Talbott, Geo. L. Mann and Thurman & Wray for respondents.
(1) Neither the motion for a new trial nor the assignment of errors are sufficiently specific to entitle the court to pass on the question of the admissibility of the evidence, or the questions raised by instructions of the court. The motion for a new trial should have pointed out with reasonable certainty the rulings of the court complained of in admitting or rejecting testimony, and designated by numbers or in some other way with reasonable certainty the instructions that error is complained of in giving or refusing. 2 Thompson on Trials, sec. 2756; Schultz v. Moon, 33 Mo.App. 329; McGarry v. Railroad, 36 Mo.App. 345; Honeycutt v. Railroad, 40 Mo.App. 674; Fox v. Young, 22 Mo.App. 386; McKensie v. Railroad, 24 Mo.App. 392. (2) It was not necessary for respondent in its petition to state the facts showing performance of the contract on its part. The general allegation that it had duly performed the contract on its part is sufficient. Revised Statutes, 1889, sec. 2079; Richardson v. Ins. Co., 57 Mo. 413; Okey v. Ins. Co., 29 Mo.App. 105; Russell v. Ins. Co., 55 Mo. 585. First. Mere defects and informalities in pleadings will be disregarded on appeal where the exception is taken to the introduction of testimony or on motion in arrest of judgment, as in the case at bar. Sayer v. Devore, 99 Mo. 437. Second. If the petition was not sufficiently specific, appellant's remedy was by motion to make more specific, and not by motion in arrest of judgment. The judgment will not be arrested when enough can be gleaned from the petition to show that plaintiff has a cause of action, no matter how defectively stated. Corpenny v. Sedalia, 57 Mo. 88; Pomeroy v. Benton, 57 Mo. 550; State ex rel. v. Williams, 77 Mo. 467, and cases cited. (3) The phrase used in the contract, "subject to inspection by any inspector whom we may see proper to send," means the right to have a person skilled in the business pass on the quality of the ties as an additional safeguard to appellant. Clacius v. Black, 50 N. Y. App. 145; Bird v. Smith, 64 E. C. L. R. 785; Camors v. Gomila, 9 Mo.App. 205. When such contracts expressly provide that an inspection shall be binding on both parties and final without appeal, the courts in many of the states have refused to uphold them. Baner v. Sampson, 102 Ind. 262; Supreme Council v. Garrigus, 104 Ind. 133; Kisler v. Indianapolis, 88 Ind. 460; Mentz v. Ins. Co., 79 Pa. St. 478; Wood v. Humphreys, 114 Mass.; Ins. Co. v. Morse, 20 Wall. 445. (4) If it had been expressed in the contract that the inspection contemplated by it was to be final and binding on both parties, the fact that appellant failed and refused to inspect or receive the ties for more than six months, and until after it had repudiated the contract by notice to respondent, would constitute a waiver of such right to bind the respondent by its inspection made subsequent to said breach, and the opinion of its inspectors is entitled to no more weight than that of any other witness equally well informed. Daubin v. Edmunds, 18 Mo.App. 307; Boteler v. Roy, 40 Mo.App. 234; Black River Lumber Co. v. Warner, 93 Mo. 374; Little v. Mercer, 9 Mo. 218. (5) Instruction marked "D" asked by appellant was properly refused. It was clearly a comment on the testimony. The jury is the judge of what weight should be given the testimony of witnesses. Jones v. Jones, 57 Mo. 138; Leeser v. Boekhoff, 33 Mo.App. 237; Forrister v. Moore, 77 Mo. 660; Rothschilds v. Ins. Co., 62 Mo. 356; Copp v. Hardy, 32 Mo.App. 588. (6) The allegations in the petition submitted to the jury constitute but one count, one cause of action, one transaction, to-wit, the failure of appellant to receive and pay for ties as required to do by the contract, which resulted in the damages assessed by the jury, consisting of the contract price for ties delivered and the net profits to respondent for ties they could have delivered but for the breach of the contract to "receive and pay for ties," and a general verdict is the only one the jury could have properly rendered. Campbell v. King, 32 Mo.App. 38; Lancaster v. Ins. Co., 92 Mo. 460; Newton v. Miller, 49 Mo. 298; Brady v. Connelly, 52 Mo. 19; Edwardson v. Gorhart, 56 Mo. 86; McKee v. Calvert, 80 Mo. 348; State v. Jackson, 90 Mo. 156. (7) Even in a suit on a contract where there are several breaches assigned, each does not constitute an independent cause of action, but, on the contrary, a single cause of action, and the assignment of breaches in such cases are used as a convenient means of setting out the different elements of damage. State v. Davis, 35 Mo. 406; Fisk v. Tank, 12 Wis. 276; People v. Tweed, 5 Hun, 353; State v. Henslee, 54 Mo. 518; State v. Berning, 74 Mo. 87; Langford v. Sanger, 40 Mo. 161.
This is a suit to recover damages for an alleged breach of contract. The defendant railroad company, acting through its agent, H. P. Jacques, and William Chapman acting for himself, executed the following contract on January 26, 1886:
It appears William Chapman cut or had cut and delivered a portion of the ties mentioned in this agreement, but he failed to make full compliance with its terms. He sold out his interest in the contract to J. H. Chapman and C. J. Harrison, the plaintiffs in this suit, who proceeded with the work. Mr. Jacques, still acting for the defendant, sent to the plaintiffs the following letter, the terms of which were accepted by them in writing on November 30, 1886:
The plaintiff completed the first of these contracts about the month of March, 1887, and then proceeded to furnish ties under the renewed contract.
The breaches alleged are: First, that defendant failed and refused to accept and pay for forty thousand ties which the plaintiffs had placed on defendant's right of way second, that defendant refused to allow the plaintiffs to get out ties under the contract after the first of July, 1887, whereby ...
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