Dietz v. Nix
| Decision Date | 02 December 1919 |
| Citation | 216 S.W. 791,202 Mo.App. 639 |
| Parties | J. F. DIETZ, Respondent, v. E. D. NIX, JOHN C. BARDWELL and W. L. WRIGHT, Appellants |
| Court | Missouri Court of Appeals |
Appeal from the Circuit Court of the City of St. Louis.--Hon. Leo S Rassieur, Judge.
REVERSED AND REMANDED.
Judgment reversed and cause remanded.
Elliot W. Major and Jos. Barton, for appellants.
It is submitted that it was prejudical error as against appellants to admit evidence of a special custom in boring wells in Oklahoma. In this case no issue concerning such custom was raised by the pleadings. A special custom must be pleaded where such custom is relied upon to take the case out of the general rules of law. And where it is not shown (and it was not in this case) that either party, when the contract was made, relied pon the custom or usage offered to be proven evidence of it should be refused. Hayden v. Grillo, 42 Mo.App. 1; McCallister v. Barnes, 35 Mo.App. 668. Customs and usages must be strictly construed. A custom cannot be admitted to vary a general and well-settled rule of law. Nor will the parties be held to have entered into a contract with reference to an unreasonable custom. A person entering into a contract is bound by the custom of a particular business, unless it is so general as to furnish a presumption of knowledge of it on his part, or unless it is proved that he was acquainted with it. Martin v. Mill Co., 49 Mo.App. 23. A custom to be good must be general uniform and notorious, and to be binding on the parties to a transaction must be directly known to them, or be so universal and general in its charcter that knowledge of it may well be presumed; and evidence which does not tend to establish an open, uniform and notorious rule, but simply consists of the declarations of witnesses as to what their individual opinions are, and the obligations they should have deemed resting upon them in certain circumstances, is illegal and should be excluded. . . . Evidence of custom is never admitted to oppose or alter a general principle or rule, so as to make the rights and liabilites of the parties other than they are at law. S.W. Freight, etc., Co. v. Stannard, 44 Mo. 71. A local custom must be pleaded not only, but must be clearly proven. It has been repeatedly held that a custom to be binding upon the parties must be general, uniform, certain and generally known and in general use, "so universal and general in its character that knowledge of it may be presumed" (S. W. Freight & Cotton Co. v. Stannard, 44 Mo. 82). Testimony as to alleged custom cannot be permitted to vary the established rule of law that the measure of damage for the breach of a contract by a purchaser is the difference between the price and the market value of the property at the time and place of delivery. Int. Harvester Co. v. Lampher, 204 S.W. 1118.
Virgil Rule and R. P. & C. B. Williams for respondent.
(1) A general custom pertaining to a particular trade or business enters into and forms a part of contract made with reference to that trade or business, and it is not necessary to plead such custom, but the court will take judicial notice of it. Long v. Armsby, 43 Mo.App. 253; Stover v. City of Springfield, 167 Mo.App. 328; 17 Corpus Juris, 516, 568, and cases cited; 16 Cyc, 878, 880, and cases cited; 1 Chamberlyne on Evidence, sec. 758, and authorities cited; also sec. 2743; Cameron v. Real Est. Co., 76 Mo.App. 371. (2) The court will take judicial notice of general usages and customs relating to a particular trade or business, although the community in which the custom is general be of limited extent. Long v. Armsby, 43 Mo.App. 253; 16 Cyc, 879, 880, and cases cited; Heyworth v. Miller, 174 Mo. 171, 185; 1 Chamberlyne on Evidence, sec. 758. (3) If it was error to admit in evidence the letters written by plaintiff to defendant Nix set out on pages 45 to 47 of appellants' abstract, it was harmless error, and did not prejudice the substantial rights of defendants on the merits for the reason that plaintiff's case was abundantly proved without such letters, and defendants were permitted to put in evidence Nix's reply to such letters, thereby curing the error, if any. See respondent's additional abstract, where such letters are set out: Latham v. Telegram Co., 239 Mo. 606, 620, 621; Shinn v. United Rys. Co., 248 Mo. 173, 182; Peny v. Van Matre, 176 Mo.App. 100; Putnam v. Boyer, 173 Mo.App. 394; Statutes 1909, sec. 1850. (4) For another and greater reason, defendants cannot complain of the admission of the letters referred to in point 3, because Plaintiff's Exhibit "C," a letter dated Oct. 6, 1914, from plaintiff to Nix, which contains by repetition, all of the matters complained of in the other two letters, was admitted without objection. The rule being that one cannot complain of the admission of evidence over his objection, where evidence of the same tenor has been admitted without his objection. Laughlin v. Kansas City, 205 S.W. 3, 8; Masonic Mutual v. Lackland, 97 Mo. 137; McPherson v. Andes, 75 Mo.App. 204.
The petition herein is in four counts. The first count alleges that plaintiff is a resident of the State of Oklahoma, that the defendants are residents of the City of St. Louis, and that prior to July 13, 1914, defendants were engaged in prospecting for oil in Oklahoma. It is then averred that on July 3, 1914, plaintiff and defendants entered into an express contract whereby plaintiff agreed to drill a certain well for defendants in the county of Rogers, State of Oklahoma, to a depth sufficient to reach what is commonly known as the "shallow sand" or until notified by defendants to cease boring. It is alleged that defendants agreed to pay plaintiff one dollar per foot for such drilling; that plaintiff entered upon the performance of the contract, furnished the necessary labor and material therefor, and drilled said well to a depth of 868 feet, when he was notified by defendants to cease drilling, which instructions he obeyed. Averring full performance of the contract by plaintiff, and defendants' refusal to pay the amount due plaintiff thereunder, judgment is prayed for the sum of $ 868, with interest and costs.
The second count is in quantum meruit to recover the reasonable value of plaintiff's services in drilling the well mentioned in the first count to a depth of 868 feet; judgment being prayed for $ 868.
For a further cause of action, and a third count of the petition, plaintiff alleges that on or about August 10, 1914, after he had drilled the said well to a depth of 868 feet, the defendants again employed plaintiff to resume the drilling thereof, and agreed to pay plaintiff therefor at the rate $ 20 per day, "and further agreed to pay plaintiff the reasonable value of any tools of plaintiff that might be lost, damaged or destroyed while plaintiff was engaged in drilling said well." It is alleged that plaintiff entered upon the performance of this contract, furnished the necessary labor and tools therefor, and continued drilling the well for a period of fourteen days; that "in the operation of drilling said well, in the usual course, and while in the exercise of ordinary care and caution," plaintiff lost certain tools, enumerated in the petition, alleged to have been of the reasonable value of $ 312.15. And it is alleged that plaintiff faithfully performed the contract on his part, but that defendants refused to pay him the amount due thereon. Judgment is prayed on this count for $ 592.15, with interest and costs.
The fourth count proceeds in quantum meruit for the reasonable value of the services rendered by plaintiff for the fourteen days work mentioned in the third count and for the reasonable value of the tools alleged to have been lost while performing such work.
The answer to the first and second counts admits that during the summer of 1914 defendants entered into an oral contract with plaintiff by which plaintiff agreed to drill for them a certain well in Rogers County Oklahoma. It is alleged, however, that by the terms of the contract plaintiff undertook and agreed to drill said well to a depth of 1250 feet, with the right and option on the part of defendants to terminate the contract and the further drilling of the well at any time before that depth had been reached; that in the contract with plaintiff it was agreed and understood that plaintiff was to furnish all of the necessary machinery, tools, etc., including water and fuel, necessary for the said work, if plaintiff would drill the well to the said depth of 1250 feet at the price of one dollar per foot. And it is averred that plaintiff began drilling under the contract and drilled the well to a depth of between 800 and 900 feet, the exact depth being unknown to defendants, but that plaintiff thereupon wrongfully, in violation of his contract, and against defendants' instructions, ceased drilling and refused to drill further or to further carry out his contract unless he was paid by defendant a greater compensation than that agreed upon, or, as an alternative, unless defendants furnished him, at their expense, with water and fuel necessary for the work; that in order to induce plaintiff to carry out his contract with them, and on his express promise to resume drilling, defendants furnished him with the fuel and water necessary therefor; that thereafter plaintiff nevertheless wrongfully faild and refused to complete the drilling of said well, quit and abanded the same, over defendants' protest, before the depth of 1250 feet had been reached.
Further answering defendants deny that plaintiff performed the terms and conditions of the contract on his part, to be performed by him, deny that they are indebted to plain...
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