Dennis v. Crooks
| Decision Date | 07 December 1886 |
| Parties | ALEXANDER DENNIS, Respondent, v. HENRY C. CROOKS, Appellant. |
| Court | Kansas Court of Appeals |
APPEAL from Grundy Circuit Court, HON. G. D. BURGESS, Judge.
Reversed and remanded.
Statement of case by the court.
This action was begun before a justice of the peace. The statement or petition was in two counts.
The first count alleged a verbal contract between plaintiff and defendant, by the terms of which plaintiff was to cut down and clear off the brush and timber from a certain tract of land owned by defendant, and to make the same ready for cultivation; and that plaintiff was to have for his services all the timber and wood said land would yield; that the plaintiff had cleared said land " except that there was about twenty dollars worth of timber remaining on said land not yet removed, which still remains there and which belongs to plaintiff; " that the defendant forbade and prevented the plaintiff and still prevents him from removing said timber from the said land to the plaintiff's damage in the sum of twenty dollars.
The second count was substantially the same as the first count except that the contract was concerning a different tract of land, and the contract had not been so nearly completed as the contract set out in the first count. The damages were laid at one hundred and twenty-five dollars. From a judgment rendered by the justice of the peace an appeal was taken to the circuit court.
The case having been brought before a justice of the peace no answer was required. But the defendant made a verbal statement of his defence. It was thus stated that the defendant had contracted with the plaintiff for the clearing of the land, and that the plaintiff was to have the timber as payment for the work done by him; that the work was to be done in a certain manner, and if not so done that the plaintiff was to forfeit all further right under the contract and all further pay for the work done; that the plaintiff had not done the work in accordance with the contract; " that plaintiff had sold part of his claim on the timber under the contract to Thomas and William Cooksey, and that they with plaintiff, had instituted a suit against the defendant therefor, prior to the commencement of this suit, in which suit all matters involved in this suit were embraced litigated, and adjusted before the justice and appealed to the circuit court, where the same was still pending."
The plaintiff testified that he was made a party plaintiff with Thomas and William Cooksey in the suit referred to without his consent, and that by advice of counsel he withdrew from said suit. The statement filed in said suit, which was offered in evidence by the defendant but excluded by the court, stated that Thomas and William Cooksey had bought of the plaintiff in this case sixteen thousand feet of saw timber, of the value of eighty dollars upon the land of the defendant in this case, and that they had hauled away nine thousand feet of said timber with the consent of said defendant, leaving on his premises and in his possession seven thousand feet, of the value of thirty-five dollars when he notified them not to remove any more of said timber to their damage in the sum of thirty-five dollars.
The plaintiff testified that he had sold to Thomas and William Cooksey sixteen thousand feet of saw timber to be removed from the land mentioned in the second count of the statement herein; that they had hauled nine thousand feet of said timber, leaving seven thousand feet of it on the said land where it still remained.
The plaintiff dismissed as to the first count of the statement.
The defendant introduced evidence tending to prove the defence verbally stated by him except in so far as concerned the former suit. Evidence offered by the defendant touching that part of the defence was excluded. The court for the plaintiff instructed the jury that if they found from the evidence that the contract was made as stated by the plaintiff, and " that the plaintiff was engaged in doing said work, about the last of January, 1885, defendant without any just cause, served notice on plaintiff to stop his cutting and hauling of logs on said land, and prevented plaintiff from completing his agreement, then the jury will find their verdict for plaintiff in the market value of all the timber, cut or uncut, then remaining upon said land, less such amount as from all the evidence the jury shall believe it was worth to complete the clearing up of said thirty acres, and burning the brush so as to make it ready for the plow."
GEORGE HALL and A. G. KNIGHT, for the appellant.
I. Where the court tells the jury, in instructing for plaintiff, that " if defendant without any just cause served notice," etc., they will find for plaintiff, it submits a question of law to the jury. Estes v. Fry, 22 Mo.App. 53; Speak v. Dry Goods Co., 22 Mo.App. 122; Morgan v. Durfee, 69 Mo. 469.
II. The court erred in the instruction, as to damages, and...
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