Davis v. Hill Bros. Veneer Co.

• Decision Date: 23 September 1929
• Docket Number: No. 4513.,4513.
• Parties: DAVIS v. HILL BROS. VENEER CO. et al.
• Court: Missouri Court of Appeals

20 S.W.2d 928

DAVIS v. HILL BROS. VENEER CO. et al.

No. 4513.

Springfield Court of Appeals. Missouri.

September 23, 1929.

Rehearing Denied October 30, 1929.

Appeal from Circuit Court, Scott County; Frank Kelley, Judge.

Action by W. E. Davis against the Hill Bros. Veneer Company, a corporation, and others. Verdict for plaintiff, and, from an order sustaining defendants' motion for a new trial, plaintiff appeals. Reversed and remanded, with directions.

Gallivan & Finch, of New Madrid, and Ward & Reeves, of Caruthersville, for appellant.

Oliver & Oliver, of Cape Girardeau, for respondent.

COX, P. J.

Action for value of walnut logs sold and delivered. Trial by jury, resulting in a verdict for plaintiff. A motion for new trial was filed by defendants, which was by the court sustained. Plaintiff appealed.

The court recited in the order sustaining the motion for new trial that it was sustained on the ground that "the evidence does not support the petition and the court erred in not sustaining the demurrer at the close of plaintiff's case."

At the trial the respondents objected to the introduction of any evidence on the ground that the petition did not state a cause of action, and that no statement of account was attached to the petition, nor set out in the petition, and that, if the petition is one based upon a contract, a copy of the contract was not filed nor set out in the petition. This was overruled, and respondents insist here that, if the court was in error in sustaining the motion for new trial upon the ground stated in the order, his action should be sustained because of the error in admitting any evidence under the petition.

The material part of the petition, omitting caption, is as follows:

"Plaintiff for his cause of action says that Hill Brothers Veneer Company is a corporation organized and existing under the laws of the State of Indiana and that Harry Hill and Howard T. Hill are partners doing business under the firm name and style of Hill Brothers Veneer Company.

"Plaintiff says that he made a contract with either Hill Brothers Veneer Company, a corporation, or Hill Brothers, a co-partnership, in which he sold and agreed to deliver to defendant certain walnut logs; that he, plaintiff, in all things carried out his contract and that by reason thereof defendant is now indebted to plaintiff in the sum of $1500.00; that said sum is now long past due and wholly unpaid. * * * Wherefore, plaintiff prays judgment against the defendants in the sum of $1500.00 and for costs."

Respondent contends that this petition does not state a cause of action upon a contract or upon an open account. While the petition is very brief and speaks in general terms, yet it does allege that he made a contract with Hill Bros. Veneer Company in which he sold and agreed to deliver to defendant certain walnut logs, and that he had in all things carried out his contract. This clearly means that he had performed the contract upon his part by delivering to defendants walnut logs which he had agreed to deliver. He then alleges that by reason thereof the defendant is indebted to him in the sum of $1,500, which is past due and unpaid. It occurs to us that a cause of action for walnut logs sold and delivered was stated. While it does not state whether the defendants had agreed to pay $1,500 for the logs, or that the logs were of that value, yet it does allege that the logs were delivered, and that by reason thereof the defendants are indebted to him in the sum of $1,500. If the defendants wanted the petition made more specific, they should have asked the court to require it to be made more specific. This petition is certainly good, after verdict, and the court did not err in overruling respondents' objection to the introduction of any evidence under it. Thomasson v. Insurance Co., 217 Mo. 485, 497, 116 S. W. 1092.

That defendants fully understood the ground upon which plaintiff was seeking to recover $1,500 from them is clearly shown by their answer, in which they pleaded payment as follows:

"The defendants further answering the petition of the plaintiff, W. E. Davis, charges and avers that if it or they ever at any time owed the plaintiff as alleged the same was fully paid and the debt settled.

"Further the defendants for another and further answer charges and avers that in the year 1926 and in the first part of the year 1927 the defendants did purchase from W. E. Davis and W. A. Dyer, partners doing business under the name of Davis & Dyer, five car loads of walnut logs. *...