Harrison v. Franklin

• Decision Date: 11 June 1907
• Citation: 126 Mo. App. 366,103 S.W. 585
• Parties: HARRISON v. FRANKLIN.
• Court: Missouri Court of Appeals

103 S.W. 585

126 Mo. App. 366

HARRISON v. FRANKLIN.

St. Louis Court of Appeals. Missouri.

June 11, 1907.

1. TRIAL—INSTRUCTIONS—INDEFINITE AND INVOLVED INSTRUCTIONS.

In an action on contracts for clearing a railroad right of way, an instruction which left it to the jury to determine how much of the work was done by "defendant," inadvertently naming defendant, instead of plaintiff, and, if they found that the work was not completed, then to find why it was not completed, and left it to the jury to find the legal consequences of the failure to complete the work, was erroneous, because indefinite and involved.

2. SAME—SUBMITTING QUESTION OF LAW.

The instruction was also erroneous as submitting both a question of law and of fact to the jury.

3. SAME — QUESTION FOR JURY — UNCONTRADICTED EVIDENCE.

The time when a demand for payment of a contract price was made, although shown by uncontradicted evidence, was a question for the jury.

4. CONTRACTS—ACTIONS—INSTRUCTIONS.

Where an injunction was issued against a person hiring the clearing of a railroad right of way, and he ordered the work stopped, in an action by the contractor against him for the contract price, tried on the theory that he stopped the work, an instruction that, though the contractor did not complete the work, yet, if he was stopped by the orders of his employer and was ready and able to continue the work, the employer could not ask a credit for causing the work to be finished by others two years thereafter, was proper.

5. WORK AND LABOR — PART PERFORMANCE WHERE FULL PERFORMANCE PREVENTED.

In an action on contracts for clearing a right of way, where the work was stopped by injunction, the petition alleged that the work was done under the contract with defendant and alleged performance. The answer denied performance, and pleaded a counterclaim for money paid plaintiff and for money paid out for completing the clearing of a part of the right of way. The reply alleged, as an excuse for non-performance, the stoppage of the work by defendant. Held, that the form of action should have been for work and labor done at the request of defendant, the contracts furnishing the measure for the value of the work done, and for the uncompleted work, the plaintiff's amount of recovery being what the work was reasonably worth, having regard to the contract price.

Appeal from Circuit Court, Pemiscot County; Henry C. Riley, Judge.

Action by R. E. Harrison against J. E. Franklin. From a judgment for plaintiff, defendant appeals. Reversed and remanded.

After the appeal was granted in this case, plaintiff died intestate, and the suit has been revived here in the name of O. H. Harrison, administrator of R. E. Harrison. In the year 1898, from Kennett, in Dunklin county, what was known as the St. Louis, Kennett & Southern Railroad ran to Caruthersville, in Pemiscot county, Mo. Pascola, a station on this road, is is Pemiscot county, Mo. South of Pascola defendant owned a large body of timber land, and desired to build a log railroad from Pascola to this land. A right of way was obtained for 8½ miles of the proposed road. Six miles south of Pascola the line crossed Elk Chute. The Kennett Railroad agreed to and did pay for the clearing and making of ties of two miles of the road from Pascola. The balance of the work and the furnishing of ties was to be done by defendant, and he employed R. E. Harrison, the plaintiff, to do the work and make the ties. Harrison signed the following agreement: "St. Louis, Kennett & Southern Railroad, Kennett, Mo. Louis B. Houck, Gen'l. Sup't. Memoranda of an agreement of Ed. Harrison, relative to cutting a right of way south from near Pascola, Mo., and putting ties on same. First. Right of way fifty foot in width is to be cleared of all timber, a strip twelve foot wide in center is to have the timber cut at the surface of the ground, all timber to be taken off the right of way, and the price on cutting and clearing is to be fifteen dollars per acre. Second. Standard ties are to be made for the said road and all ties so cut within one hundred feet of each side of the center of the right of way and put at edge of clearing fifty ties to the hundred foot and shall be paid for at the following rates, to wit: Cypress, ten cents per ties. Oak, locust, mulberry and sassafras at twelve cents per tie. Third. Eight and a half miles for the proposed road now being laid out by the engineer shall be cleared as above specified by August 1, 1898, and the ties cut and put at edge of right of way as above specified by the first of September, and this time is made the essence of this agreement. Fourth. At the end of each month he is to furnish a payroll with statement of the amount of work done during the month approved by the engineer in charge, but the amount called for by the payroll shall in no case exceed the sum due in this agreement; payment shall be made by the fifteenth of succeeding month. Fifth. The St. L., K. & S. Ry. Co. shall be held responsible for the clearing of the first two miles from Pascola south and the ties put thereon, and J. E. Franklin for the balance of the road. Sixth. Said Harrison is to receive for all merchantable cottonwood and ash logs and hickory cut on the right of way and rolled to the edge thereof, one dollar per thousand log measure to be paid when the road is completed and the logs taken up by the saw mill company. R. E. Harrison. June 3, 1898." Harrison did not complete the work by September 1st, and, in order to furnish the required number of ties, he had to go more than 100 feet into the woods from the right of way, and on September 6, 1898, the following supplementary contract was made: "Whereas, the contract heretofore made between Ed. Harrison and J. E. Franklin and the St. L., K. & S. Ry. for cutting of ties to be used in extension from Pascola south, did not stipulate price to be paid said Harrison for hauling ties where it was necessary to haul more than one hundred feet and did not stipulate price that should be paid for seconds to supply said omission, it is agreed that on the lower six and one-half miles the additional charge to be paid said Harrison for distributing ties uniformly fifty ties to the 100 feet along cleared right of way shall be one and one-fourth cents per tie. Ties that shall be graded by the St. L., K. & S. Ry. as seconds shall be paid for at half price heretofore stipulated for standard ties, plus the one and one-fourth cents per tie. For the two miles nearest Pascola two cents additional to contract shall be paid for distributing as above. J. E. Franklin. St. L., K. & S. Ry., by J. E. Franklin, Agent. R. E. Harrison." In the month of October, and before the work of clearing the right of way and the distribution of ties was completed, an injunction was issued against J. E. Franklin, the defendant, by the circuit court of Pemiscot county, interfering with the prosecution of the work, and, on notice from defendant of the issuance of the injunction and on his order, Harrison quit work. The suit was to recover a balance alleged to be due for work done under the contract.

Omitting caption, the petition is as follows: "Respondent's petition alleges that he entered into a contract with appellant to clear out a right of way for a railroad in Pemiscot county, in which it was agreed that respondent should be paid $90 per mile for cutting out the right of way, 13¼ cents for each oak tie, and 11¼ cents for each cypress tie, made and put on the edge of the right of way, $1 per 1,000 feet for all saw logs cut from the right of way. The petition further alleges that the plaintiff cut 6½ miles of the right of way, making $585 due him on that account; that he cut and delivered 5,273 oak ties, 10,101 cypress ties, 150,000 feet of saw logs, making $1,980.87 due him on account of ties and logs, and a total...