Currell v. Hannibal & St. Joseph Railroad Co.
| Decision Date | 01 December 1902 |
| Citation | 71 S.W. 113,97 Mo.App. 93 |
| Parties | W. P. CURRELL, Respondent, v. HANNIBAL & ST. JOSEPH RAILROAD COMPANY, Appellant |
| Court | Kansas Court of Appeals |
Appeal from Clinton Circuit Court.--Hon. A. D. Burnes, Judge.
Judgment reversed.
William Henry, John Cross and C. A. Mosman for appellant.
(1) The defendant's objection to any evidence under the petition should have been sustained. (2) The defendant's demurrer should have been sustained. The evidence for plaintiff failed to establish a promise or agreement on defendant's part to have the cars at the station at one o'clock in the morning. The language detailed in evidence was not an undertaking to have the cars there at one o'clock a. m Johnson v. McCune, 21 Mo. 211; s. c. 27 Mo. 181; Land Co. v. Pitt, 114 Mo. 135; Land Co. v Hanna, 126 Mo. 5. (3) There was no evidence tending to support the allegation that when the cars arrived it was too late to get to Chicago in time for the market. (4) Again, the rule of law is, that a party to a contract, who has prevented the opposite party from performing his part of the contract can not sue upon it. Plaintiff could not demand a guaranty that the cattle would arrive in Chicago by a certain hour, and when defendant declined to give it, abandon the contract, drive his cattle home, and sue the defendant for the damages occasioned by such driving. His act created the damage for which he sued. Spurlock v. Railroad, 93 Mo. 530; Berch v. Sander, 37 Mo. 104; Doyle v. Turpin, 57 Mo.App. 84. (5) The time the cars were to arrive at the station was not of the essence of the contract. Heating Co. v. Bennett, 41 Mo.App. 420. (6) Even if it be held that the defendant had expressly contracted to have the cars at the station at one o'clock and that the defendant failed to keep its agreement, still that was no justification for his abandoning the contract. At most, in law, it only entitled him to compensation for any damages resulting directly to him from the violation of the contract by defendant. Wherever "the substance of the contract can be executed, it will stand, and the remedy is in the way of compensation." Harl v. Handlin, 43 Mo. (171) 175; Manfg. Co. v. McCord, 65 Mo.App. 509 and 510.
F. B. Ellis for respondent.
(1) In this case the main dispute is as to what the contract was. Where there is no dispute as to the terms of an oral contract, and it admits of but one interpretation, then its construction is for the court, but where its terms are controverted, as in this case, it is then a question of fact to be determined by the jury. Davis v. Baldwin, 66 Mo.App. 577; Halbert v. Halbert, 21 Mo. 284; Farley v. Pettis, 5 Mo.App. 265. (2) The appellant next contends that there was a variance between the allegation of the petition and proof in this: that the cause of action was bottomed upon the failure of the defendant to furnish cars in time to ship the cattle to the market, when the proof shows that there was ample time to load and ship the cattle and have them upon the market for which they were being shipped. Even if this is the case, there was evidence to go to the jury that there was not time, and the appellant had this question submitted to the jury by proper instructions, and it can not now complain. The question now contended for by appellant was submitted to the jury in an instruction which told the jury that if the defendant had the cars in readiness in time to ship the cattle so that they could have been sold upon the market for which they were being shipped, then they were to find for the defendant. While we think from the evidence the instruction is erroneous, the defendant can not complain. If it was error they invited it, and they can not now take advantage of their own wrong. (3) He was told by defendant when he should have them at the depot. He had them there at that time. It appears that time was the essence of this contract. If plaintiff could not get the cars in time to make a certain market, he would not need them at all. There are cases where time may be the essence of a contract. Railroad v. Levy, 17 Mo.App. l. c. 501; Melton v. Smith, 65 Mo. 315. (4) Where a railroad company contracts to furnish cars at a certain time and for a special shipment and it fails to furnish the cars in accordance with such contract the company is liable for damages for a breach of such contract. Baker v. Railroad, 91 Mo. 552; Gown v. Railroad, 72 Mo.App. 34; Aull v. Railroad, 66 Mo.App. 388; Harrison v. Railroad, 74 Mo. 365; Leonard v. Railroad, 62 Mo.App. 252.
OPINION
BROADDUS, J.--As a proper determination of this cause turns upon a construction, to some extent, of the pleading of the parties, it becomes necessary to incorporate certain parts of the petition in this opinion. The petition alleges:
The petition further proceeds to allege that by reason of the failure of defendant to provide cars in time for shipment for the Chicago market of September 14, they were not shipped by him but returned to his farm, and that by reason of all which their value was depreciated on account of shrinkage to his damage in the sum of five hundred dollars.
The defendant's answer, after a general denial of the allegations of the petition, among other things alleges, that the contract of the defendant was to provide at said station of Lathrop a sufficient number of cars, to receive and transport the plaintiff's cattle to the Chicago market, that said cars were to be furnished by it on the thirteenth day of September in time for said cattle to reach said market on the fourteenth day of said month, and that said cars were so furnished by it at said station to receive and ship said cattle, on said day in time for shipment to said market for said fourteenth day of said month, but that plaintiff failed and refused to ship his cattle as he had agreed by the terms of his contract to do.
On the trial the plaintiff for recovery relied upon the fact of the failure of the defendant to have its cars on hand in readiness for loading and shipment at one o'clock, September 13. The defendant objected to the introduction of any evidence under the petition in the case, for the reason, that it did not state a cause of action. The objection was overruled and defendant duly excepted to the action of the court in overruling its objection.
It will be seen by an examination of the petition, which is very loosely drawn, that it does not allege the existence of any contract between himself and the defendant for the shipment of his cattle to Chicago, but at most, it can only be construed as pleading a breach of an unpleaded contract. It is a familiar rule of pleading, that in actions to recover damages for the breach of a contract, a contract must be set out in haec verba or according to its legal effect, with a proper assignment of the breaches relied on. Langford v. Sanger, 40 Mo. 160; Peck v. Bridwell, 6 Mo.App. 451. It follows, therefore, that the introduction of any evidence under said petition was inadmissible by reason of its fatal defects, unless such defects were cured by the defendant's answer. The answer does set out that there had been a contract entered into between the parties, for the shipment of the plaintiff's cattle from said station of Lathrop to Chicago, the substance of which, we have seen, was that the defendant agreed to have the necessary cars for their reception and shipment at the station on September 13, in time for their transportation to Chicago for Friday's market, September 14, but that defendant failed and refused to ship his cattle.
It is also a rule of pleading that the defective allegations of a petition may be supplied by those of the answer, so that when read together, a cause of action is stated. Insurance Co v. Tribble, 86 Mo.App. 546. The plaintiff in reply to defendant's answer admitted the contract as set out therein. If, then, the answer of the defendant is to be treated as supplying the defects of plaintiff's petition as to the averment of a contract between the parties, then the issue on trial was on said contract and not on the alleged breach of another and different one. But as the plaintiff was seeking to recover for...
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