Hammond v. Beeson
| Citation | 20 S.W. 474,112 Mo. 190 |
| Parties | Hammond v. Beeson et al., Appellants |
| Decision Date | 14 November 1892 |
| Court | Missouri Supreme Court |
Appeal from Jackson Circuit Court. -- Hon. T. A. Gill, Judge.
Reversed and remanded.
R. O Boggess and Milton Moore for appellants.
(1) The objection to any evidence ought to have been sustained. The petition states a specific contract and a breach thereof. The particular damages set out and sought to be recovered are not logically or lawfully predicable of such a breach of such a contract. (2) First. The first instruction given in behalf of the plaintiff is wrong in these particulars, viz.: There was no evidence of any agreement between the parties that the road should be ready for plaintiff by September 1, or that he was notified to be on the ground by that date. Second. The instruction is further objectionable, because it embraces a conclusion of law, as to whether or not "under the contract the plaintiff took the risk of the work being ready by September 1," was submitting a conclusion of law to the jury. Hickey v. Ryan, 15 Mo. 62; Hunt v Railroad, 75 Mo. 252; Cape Girardeau Co. v Harbison, Adm'r, 58 Mo. 90. The addition of the words, "as declared in other instructions," did not cure the defect. Third. The instruction is misleading, and does not fully submit the issues presented by the pleadings and evidence. Bank v. Lonergan, 21 Mo. 46; Belt v. Goode, 31 Mo. 128; Greer v. Parker, 85 Mo. 107. (3) The second instruction given in behalf of the plaintiff was objectionable, as follows: First. There was no evidence tending to prove that the defendants agreed that the work should be "surveyed and staked out" and ready for grading by September 1, or that plaintiff was notified that it would be ready for him at that time. Second. There was no evidence that Hammond's men and teams were kept in idleness for the space of thirty days. Third. There was no evidence of any expenses "actually" or "necessarily" "spent" by the plaintiff for the hire of his men and the moving of his "outfit." Fourth. The instruction is misleading and assumes contested facts to have been proven. The objectionable language is as follows: "And, in estimating his damages, you may allow such reasonable value as you believe is shown by the evidence for the services of plaintiff's teams and men, during the time they were so kept idle on account of defendant's failure to provide work as he had so contracted to do." Sawyer v. Railroad, 37 Mo. 241; Meritt v. Given, 34 Mo. 98; Moffatt v. Conklin, 35 Mo. 453. Fifth. The rule as to damages embraced in this instruction is erroneous. At the time Hammond left the line of work it had not been "cross-sectioned," but this was afterwards done, and the work performed by others, hence, the number of "yards" in the five sections could have been ascertained (Id certum est quod certum reddi potest), and the amount thereof computed. Pond v. Wyman, 15 Mo. 175; Dean v. Ritter, 18 Mo. 182; Ferry Co. v. Railroad, 73 Mo. 389; Park v. Kitchen, 1 Mo.App. 357; Hayward v. Fitzgerald, 50 Mo. 516; Fox v. Harding, 7 Cush. 516. (4) The court erred in refusing to give instructions numbers, 1, 2, 3, 4, 5, 6 and 9 asked by the defendants. (5) The court erred in permitting plaintiff to read his own letters of August 12 and 26. They were not only incompetent and irrelevant, but open to objection of making testimony in his own favor. (6) The finding of the jury was against the evidence in the matter of damages.
Hollis & Hamner for respondent.
(1) The petition is good. Moore v. Mountcastle, 72 Mo. 605. (2) The first instruction given for plaintiff is not erroneous as claimed by appellants. (3) The second instruction is also correct. Moore v. Mountcastle, 72 Mo. 605; Liebke v. Methundy, 18 Mo.App. 143; Shiver v. Sischert, 23 Mo.App. 275; Nance v. Metcalf, 19 Mo.App. 183; Gaty v. Sack, 19 Mo.App. 470. (4) The court did not err in refusing defendants' instructions; they were all faulty. (5) So the court rightly admitted in evidence defendants' telegrams. Morse v. Diebold, 2 Mo.App. 163; Howell v. Howell, 37 Mo. 124; Shirts v. Overjohn, 60 Mo. 305; Schlicker v. Gordon, 19 Mo.App. 479. (6) The rule as to the measure of damages was proper. Moore v. Mountcastle, 72 Mo. 605. The rule contended for by appellants in the case at bar would be highly improper and purely speculative. Lewis v. Ins. Co., 61 Mo. 534; Hughes v. Wood, 50 Mo. 350; Saunders v. Brosius, 52 Mo. 350; Clemens v. Railroad, 53 Mo. 366; Kirkpatrick v. Downing, 58 Mo. 40; Wilson v. Wiel, 67 Mo. 399; C. M. & M. Co. v. Clark, 32 Mo. 308.
OPINION
In Banc.
Plaintiff sued for special damages for breach of an alleged contract to grade for defendants five miles of railroad in Rush county, Kansas.
The petition charged that both plaintiff and defendants were contractors and builders of railroads; that in August, 1886, plaintiff and defendants entered into a contract by which plaintiff agreed to grade for them five miles of railroad, for which defendants were to pay ten cents per yard, and that work would be ready by September 1, 1886; that plaintiff moved his men, wagons, teams and implements to the place the work was to be done and was ready to commence on the first of September, according to contract; that defendants neglected to get the work ready for plaintiff at any time, and in that regard violated his contract.
Plaintiff claimed special damages as follows: "Defendants kept plaintiff's whole outfit there in idleness for thirty days at great expense and cost to plaintiff, viz.:
The wages of said teams were $ 3 per day each, amounting to
One foreman at $ 75 per month
One foreman at $ 60 per month
One stableman at $ 25 per month
One cook at $ 40 per month
One timekeeper at $ 35 per month
Personal expenses, including railroad fare
Time and wages of teams and men going to said work, ten days
at $ 108 per day
1,080 00
Total expense and loss to plaintiff
The evidence tended to prove that defendants were contractors for building the road, and that the work could not be done until the railroad company which was building the road had established the line and staked off the grade for the contractors; and that plaintiff had notice of this and took his contract subject to the condition that the railroad company should have the work ready. This, plaintiff's evidence tended to disprove. Defendants' default was caused by the delay of the railroad company.
Objections were made to the petition and to the admission of evidence thereunder.
At the close of plaintiff's evidence, and also at the close of all the evidence, an instruction in the nature of a demurrer to the evidence was asked by defendants and refused by the court.
Two instructions were asked by plaintiff, both of which were given. The first is only open to some verbal criticism which could have done no harm to defendant, and will not be noticed. The second, to which serious objection is made, was as follows:
Judgment was for plaintiff, and defendants appealed.
I. While the evidence was quite conflicting, and in some particulars very unsatisfactory, we are of the opinion that the facts disclosed tended to prove a contract between the parties, and a breach of it by defendants, and that the facts were sufficiently stated in the petition.
In an interview between plaintiff and defendants, on the twenty-third day of July, it became understood that the grading or part of it would be let out to subcontractors, at a uniform price of ten cents per yard. We do not think though that anything transpired, on this occasion, that would constitute a contract between the parties. They did, however, become advised, that plaintiff wished a contract, and that defendants were willing that he should have one.
On July 31, plaintiff wrote defendant Beeson, asking him if he could have five miles of the grading. On the third of August Beeson answered: Plaintiff, on the eleventh of August, notified defendant Selden that he took five miles, which fact was on that day telegraphed Beeson by Selden. On the twelfth of August, plaintiff notified Beeson by letter that the was advised that he was to get sections commencing at 117, and that he understood the sections were all together. This information he must have received from Selden. No reply was made to this letter, and plaintiff had the right to rely on...
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