Dement v. McNail
| Decision Date | 03 March 1928 |
| Docket Number | No. 4285.,4285. |
| Citation | 4 S.W.2d 831 |
| Parties | DEMENT v. McNAIL. |
| Court | Missouri Court of Appeals |
Appeal from Circuit Court, Carter County; E. P. Dorris, Judge.
Action by Ira Dement against J. P. McNail, in which defendant interposed a counterclaim. Judgment for plaintiff, and defendant appeals. Affirmed.
See, also, 281 S. W. 128.
J. H. Keith, of Ironton, and John H. Chitwood, of Ellington, for appellant.
Henson & Woody, of Poplar Bluff, for respondent.
This is an action for damages for an alleged breach of contract. The cause was tried before the court and a jury. Plaintiff recovered, and defendant appealed.
March 17, 1919, plaintiff and John Dement entered into a written contract with defendant to cut into lumber certain pine and oak timber on defendant's lands in Reynolds county. Shortly after the execution of the contract plaintiff, with defendant's consent, purchased the interest of John Dement in the contract and became solely responsible for performance and was entitled to all profits.
It is alleged that by the contract plaintiff agreed to move his mill on the lands described, cut the timber in the woods, do his own logging, and cut into lumber all the described pine and oak timber thereon; that defendant was to furnish dimensions of lumber to be cut and to pay plaintiff $10 per thousand feet for all lumber less than 20 feet in length, and $11 for such as was over 20 feet in length and less than 30 feet; and that, in addition, defendant was to pay plaintiff 50 cents per thousand feet for stacking the 1-inch lumber on the yard.
It was further alleged that by the contract it was agreed that if the market price of oak should fall below $20 and pine below $18 per thousand f. o. b. Missouri Southern Railroad, then defendant would have the right to stop plaintiff from cutting lumber under the contract, but that defendant would not have the right to stop operations on any other grounds.
It was further alleged that after operating for some time under the contract as written said contract was, by verbal agreement between plaintiff and defendant, modified so that thereafter defendant was to cut the remaining timber in the woods and do the logging, and for such plaintiff was to pay defendant $1 per thousand for cutting the pine and $2 for the oak and $3 per thousand for logging to the mill; that plaintiff continued operations under the modified contract until August 10, 1920, at which time defendant, without cause, breached the contract by refusing to cut and haul the logs and "told plaintiff that said contract was at an end, and that he [defendant] would not take or pay for any more lumber cut by plaintiff and ordered plaintiff not to saw any more logs from said lands."
Plaintiff further alleged that at the time of the alleged breach of the modified contract by defendant there were 750,000 feet of contract timber still on the lands described in the contract, and "that by reason of the acts and conduct of the defendant breaking and breaching said modified contract sued on herein as herein set out and preventing plaintiff from sawing and manufacturing the timber on the lands in said petition and contract mentioned and receiving the profits that would have accrued to him by sawing and manufacturing all of said timber into lumber under said contract, and removal of his mill from first to second set on defendant's land under said contract, he has sustained damages in the total sum of $2,500."
For answer defendant admitted the execution of the contract and denied generally all other allegations. Also, defendant pleaded a counterclaim for $2,250 based upon the alleged failure of plaintiff to complete the cutting into lumber of all of defendant's timber described in the contract. The reply denied generally the new matter set up in the answer.
This is the second appeal in this cause. When here before the question presented was the correctness of the trial court's action in granting a new trial. See Dement V. McNail, 281 S. W. 128. Defendant paid plaintiff as per the terms of the contract for all lumber cut prior to the date of the alleged breach, and the controversy was as to which of the parties was responsible for the termination of operations on August 10, 1920. We do not deem it necessary to set out the evidence. We think it sufficient to say that plaintiff's evidence tended to show that defendant breached the contract as by him alleged, and that, on the other hand, defendant's evidence tended to show that plaintiff was the one who breached the contract.
Error is assigned (1) on the failure of the court to give an instruction in the nature of a demurrer to the evidence at the close of the case; (2) on the given instructions; (3) on the admission of evidence; and (4) on the ground that the verdict did not dispose of the counterclaim.
What we shall term the "demurrer" is based upon the contention that plaintiff's petition "fails to state such facts as will, under the law, authorize a recovery." It is contended that the damages sought were in their nature speculative, and that such being the case the elements of damage should have been specifically pleaded. As appears, supra, from the concluding paragraph quoted from the petition, it is stated that by reason of defendant's alleged breach plaintiff was prevented from "receiving the profits that would have accrued to him," to his damage in the sum of $2,500.
Defendant filed no demurrer to the petition and did not move to make it more definite and certain. At the beginning of the trial defendant objected to the introduction of any evidence on the ground that the petition wholly failed to state a cause of action in that it did not "specify the amount it cost him [plaintiff] to operate the mill, or what his profit would be on the thousand feet, or his loss." The objection was overruled and defendant saved exception. In the situation here presented every intendment will be indulged in favor of the petition after verdict. Vaughn v. May, 217 Mo. App. 613, 274 S. W. 969. But it is not necessary to determine the question now in hand under the rule of intendment. It appears that plaintiff testified that in his estimate 625,000 feet of the contract timber was standing on the land when defendant "stopped him from operating his sawmill," and without objection testified that his profit under the contract was $4 per thousand. When no objection is made to the introduction of evidence, the petition will be considered as amended to conform to the evidence. Whitehead v. Koberman (Mo. App.) 299 S. W. 121; Treece...
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