Chouteau v. Jupiter Iron-Works
| Citation | 7 S.W. 467,94 Mo. 388 |
| Parties | Chouteau, Appellant, v. Jupiter Iron Works |
| Decision Date | 19 March 1888 |
| Court | Missouri Supreme Court |
Appeal from St. Louis City Circuit Court. -- Hon. A. M. Thayer Judge.
Reversed and remanded.
S Herman and Hitchcock, Madill & Finkelnburg for appellants.
(1) Where a case has been decided by the appellate court, and is again taken up by appeal or writ of error, only such questions will be noticed as were not determined in the previous decision. Whatever was passed upon in the former opinion will be deemed res adjudicata, and no longer open to dispute. Chambers v. Smith, 30 Mo. 156; Overall v. Ellis, 38 Mo. 209; Bank v. Taylor, 62 Mo 338; Hamilton v. Marks, 63 Mo. 167; Gaines v. Fender, 82 Mo. 497. (2) It is the duty of the court to construe a written contract; and that is so, whether the contract is to be construed by its written terms only, or by arriving at the interpretation by examining the terms of the instrument in the light of surrounding circumstances. San Antonio v. Lewis, 9 Tex. 69; Goddard v. Foster, 17 Wall. 142; Smith v. Faulkner, 12 Gray 251; Thomas v. Thomas, 15 B. Mon. 178; Whittlesy v. Kellogg, 28 Mo. 404; Falls River Co. v. Broderick, 12 Mo.App. 378; Railroad v. Jurey, 111 U.S. 592. (3) After a cause has been argued and committed to the jury, it is error for the court to hold any communications, whether written or oral, with the jury, whether these communications are in the form of instructions, or any other form, without the full assent of parties or their counsel. If additional instructions are given, an opportunity should be afforded the parties to reargue the cause, if they so determine. Norton v. Dorsey, 65 Mo. 377; State v. Alexander, 66 Mo. 163; Dowzelot v. Rawlings, 58 Mo. 78; Cluskey v. St. Louis, 50 Mo. 89; Burns v. Wilson, 1 Mo.App. 179; Scott v. Haynes, 12 Mo.App. 596; Fox v. Union Depot Co., 7 Mo.App. 593; Chinn v. Davis, 21 Mo.App. 365; Sargent v. Roberts, 1 Pick. 341; O'Connor v. Guthrie, 11 Iowa 80; Bank v. Mix, 51 N.Y. 558; Kirk v. State, 13 Ohio 513; Read v. Cambridge, 124 Mass. 568; Thompson on Juries, 419-425; Crabtree v. Hazenbau, 23 Ill. 349; Taylor v. Betsford, 13 Johns. 487. (4) An instruction which assumes the existence of a fact, concerning which there is no evidence, is erroneous, although it may state correctly an abstract proposition of law. Lester v. Railroad, 60 Mo. 268; Condon v. Railroad, 78 Mo. 574; Utley v. Tolfree, 77 Mo. 309; Bowen v. Railroad, 75 Mo. 428; Skyles v. Bollman, 85 Mo. 35; Bank v. Crandall, 87 Mo. 208. (5) It is proper for the court, in actions involving questions of negligence, the rescission of contracts by the acts of parties, and other similar actions, to point out certain acts of the parties, and instruct the jury as to the legal effect attached by the law to those acts; but it is error to either comment upon any such fact, or to select any one fact, out of several others having the same legal complexion, and direct to it the special attention of the jury. Roths-child v. Insurance Co., 62 Mo. 360; Forrester v. Moore, 77 Mo. 660; Chouteau v. Iron Works, 83 Mo. 73; Riggins v. Railroad, 73 Mo. 598; Dewitt v. Railroad, 50 Mo. 304; Henry v. Bassett, 75 Mo. 95.
Boyle, Adams & McKeighan for respondent.
(1) Facts existing antecedent to the execution of a written contract which show the original purpose and consideration of the contract, coupled with proof of the knowledge of such facts on the part of the parties to the contract, are relevant and competent evidence when taken in connection and linked with acts and occurrences after the execution of the contract, on an issue concerning the abandonment of that contract, and are not in any proper sense to be considered as modifying or altering the terms of the written contract, which were undisputed and not an issue in the case. Edwards v. Smith, 63 Mo. 119; Taylor v. Shouse, 73 Mo. 361; Budd v. Hoffheimer, 52 Mo. 297; Coughlin v. Haeussler, 50 Mo. 126. An abandonment of a contract by mutual consent of the parties may be proved by proof of the acts, declarations, conduct, circumstances, and facts surrounding the parties, from which a mutual agreement to abandon may fairly be inferred, and even slight circumstances will be sufficient to show assent to such abandonment. Fine v. Rogers, 15 Mo. 321; Henry v. Bassett, 75 Mo. 95; Chouteau v. Iron Works, 83 Mo. 73. (2) Any rulings of the court on the admission of evidence or in giving or refusing instructions relating exclusively to the issue of abandonment in this case, even if erroneous, have not injured the plaintiff, and have not materially affected the merits of this action, because the issue of abandonment was found in favor of the plaintiff. Harmless errors or those not affecting the merits of the action present no ground for reversal. Branger v. Chevalier, 9 Cal. 353; R. S., sec. 3775; Huskins v. Railroad, 58 Mo. 302; Filley v. McHenry, 84 Mo. 277; Wright v. McPike, 70 Mo. 180; State v. Fritterer, 65 Mo. 422; State v. Christian, 66 Mo. 138; State v. Barr, 81 Mo. 108; State v. Kelley, 85 Mo. 143. (3) When the instructions given by the court, taken all together, fairly present the issues involved to the jury, the refusal by the court of superfluous instructions, in themselves correct, constitutes no error. Porter v. Harrison, 52 Mo. 524; Henschen v. O'Bannon, 56 Mo. 289; O'Neil v. Capelle, 56 Mo. 296; Myers v. Railroad, 59 Mo. 223; State v. Jump, 90 Mo. 171; Keim v. Railroad, 90 Mo. 314. (4) Unless objections to evidence are specific, and unless the record shows the specific ground on which they are based, they will not be considered by appellate tribunals. Roussin v. Insurance Co., 15 Mo. 244; Shelton v. Durham, 76 Mo. 434; Holmes v. Braidwood, 81 Mo. 610. (5) There is no reversible error in the action of the trial court in giving the written reply to the written question submitted by the jury after it had gone into retirement. (1) Because the reply of the court was correct in law, and warranted by the facts of the case. (2) Because the reply of the court involved no new or additional proposition which had not been before the argument of the case given to the jury and fully discussed by counsel. (3) Because the reply of the court, taken in connection with the questions of the jury, could work no harm to the plaintiff, for -- (a) It related alone to the damages, and the verdict as rendered for nominal damages was the only rational verdict the facts of the case permitted. (b) It was not attended with any secret interviews or any intentional improper action on the part of the court. All that was done was in writing and immediately filed as a paper in the case, subject, in its full scope, to inspection of counsel and to exceptions as to its legality. (c) The questions as put by the jury to the court show that the only concession contemplated by the jury (concerning the propriety of which they asked the instruction of the court) was against defendant, and in favor of the plaintiff. Dowzelot v. Rawlings, 58 Mo. 78; Cluskey v. St. Louis, 50 Mo. 89; Norton v. Dorsey, 65 Mo. 377; State v. Alexander, 66 Mo. 163; State to use v. Smit, 20 Mo.App. 50; Shapley v. White, 6 N.H. 172; Bassett v. M'f'g Co., 28 N.H. 457; Allen v. Aldrich, 29 N.H. 63; Goldsmith v. Solomon, 2 Strob. (S. C.) 296; Thuyer v. Van Vleet, 5 Johns. 111. (4) (a) Because the plaintiff and his counsel were present in court and heard the court inform the jury, that if they desired further instructions as to any further point of law to make their request known in writing after retiring to their jury-room, and were silent and took no exception thereto. (b) Because after the jury had sent the request, in conformity to the direction of the court, and after the court had written the answer thereto and sent it to the jury-room, one of plaintiff's counsel, before the jury had agreed upon a verdict, knew what had been done by the court, and instead of objecting thereto in time to correct the error, made no objection, but awaited the result in silence. Plaintiff's counsel should have spoken out and made their objection at the time. It is too late to insist upon this irregularity, as an error after verdict, and on motion for new trial. By such conduct plaintiff waived the irregularity if there was such. State v. Waters, 62 Mo. 196; Grove v. City of Kansas, 75 Mo. 672; Lewis v. McDaniel, 82 Mo. 577; Valentine v. Railroad, 138 Mass. 28; Osgood v. Toole, 60 N.Y. 469; Tower v. Moore, 52 Mo. 118; Baker v. Rice, 52 Mo. 23; State v. Saunders, 76 Mo. 37.
OPINION
This is a suit to recover damages for the alleged refusal of the defendant to permit the plaintiff to execute a contract which he had with defendant. The defendant is a corporation under the laws of this state. By the terms of the contract, plaintiff was to take charge of and operate the furnace to the best of his ability, furnish the labor, unload the coal, coke, ore, and limestone required by the furnace, and to take the iron from the casthouse. Defendant agreed to furnish such ores as were best adapted for making Bessemer metal, "Big Muddy Coal," and "Connellsville Coke," the materials going into the furnace and the pig iron coming from the casthouse to be weighed at expense of defendant. Defendant was to pay the plaintiff $ 2.30 per ton for the iron made. It is further provided that the contract shall be in full force for one year from the time of lighting the furnace. The contract bears date twenty-seventh of March, 1877. The answer is a general denial, and it sets up an abandonment of the contract by the mutual consent of the parties.
There was a verdict for the plaintiff with nominal damages and he appealed. The errors assigned relate: (1) to the admission of evidence on behalf of the defendant; (2) the...
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