Jonesboro, Lake City & E. R. Co. v. United Iron Works Co.

• Decision Date: 13 March 1906
• Court: Missouri Court of Appeals
• Parties: JONESBORO, LAKE CITY & E. R. CO. v. UNITED IRON WORKS CO.

94 S.W. 726

117 Mo. App. 153

JONESBORO, LAKE CITY & E. R. CO. v. UNITED IRON WORKS CO.

St. Louis Court of Appeals. Missouri.

March 13, 1906.

1. APPEAL — CONFLICT BETWEEN RETURN TO WRIT AND PLEADINGS AND EVIDENCE.

Though the return to the writ of replevin, which is part of the record, that the sheriff took a forthcoming bond from defendant for delivery of the article replevied, if it should be adjudged that plaintiff was entitled to its possession, is conclusive on the parties, yet the answer alleging that plaintiff replevied and took the article from its possession, and praying for its return, and the reply substantially admitting these allegations by averring facts showing the property was delivered to plaintiff under the writ, and the agreement in evidence that each party had a representative present when the officer took the property from the possession of defendant and delivered it to plaintiff, conclusively show that the case was tried on the theory that the property was delivered to plaintiff, so that it cannot on appeal attack the judgment on the theory that the contrary was the fact.

2. EVIDENCE—MEMORANDA—TIME SLIPS.

Time slips made out by workmen and O. K.'d by the foreman are admissible as original memoranda of the number of hours of work performed on a certain job; it being shown that each employé was required, at the end of his day's labor, to make out and hand to the foreman of the department in which he worked a time slip, which, if found correct, was O. K.'d by the foreman.

3. CONTRACTS — COMPENSATION — DEDUCTIONS FOR MISREPRESENTATIONS — INSTRUCTIONS.

Where the contract was that defendant should do the work, keep the cost down as low as possible, and charge only a fair margin of profit, and there was evidence that more time was expended in doing the work than should have been, had defendant been well equipped for doing the work, as it represented itself to be, the case was properly submitted by instructions authorizing the finding for defendant of the cost of the work and materials expended in the work, plus a fair margin of profit; defendant to be allowed nothing for excessive time expended because of its not being properly equipped for the work as represented.

4. APPEAL — HARMLESS ERROR—SUBMISSION OF QUESTIONS TO JURY.

Error in leaving it to the jury to find whether a contract was made, when one was made by letters passing between the parties, as the court should have declared, is harmless; the instruction having correctly interpreted the contract, and the jury having found that one was made.

5. INTEREST—DEMAND FOR PAYMENT.

Defendant's letters to plaintiff notifying it that the work would be completed a week later, and requesting that it send a man authorized to accept the work and O. K. the bills, is a demand for payment of the bills, within Rev. St. 1899, § 3705, authorizing the recovery of interest on accounts after they become due and demand of payment is made.

6. APPEAL—DEFECT IN VERDICT — OBJECTION NOT MADE BELOW.

The defect in the verdict in replevin for an engine and tender, on which defendant claimed a lien for repairs, "we * * * find the issues for defendant and assess the value of its special interest in the engine at $3,800," in not finding the issues in respect to the tender, not having been complained of below, may not be complained of on appeal.

7. SAME—CORRECTION OF JUDGMENT.

Error in the judgment in replevin for an engine and tender, on which defendant claimed a lien for repairs, in finding that defendant should have $3,800, or the engine and tender, whereas the verdict found defendant's interest in the engine to be $3,800, but did not find the issues in respect to the tender, may be corrected on appeal.

Appeal from Circuit Court, Lawrence County; F. C. Johnston, Judge.

Action by the Jonesboro, Lake City & Eastern Railroad Company against the United Iron Works Company. Judgment for defendant. Plaintiff appeals. Modified.

The suit was instituted in the Greene circuit court to recover the possession of one locomotive engine numbered 17 and lettered J. L. C. & E., and one tender similarly lettered, alleged to be the property of the plaintiff. The petition was in the ordinary form. The answered alleged that defendant had a lien upon the replevied property for repairs, etc., made under a contract with the plaintiff therefore; that the amount of its lien was $4,465.65, and that the repairs were completed on September 1, 1904, when the bill or account thereof was presented to the plaintiff and payment refused; that defendant retained possession of the engine and tender, for the purpose of enforcing its lien, until the same was taken from it, without its consent, under the writ of replevin herein, and prayed judgment for the amount of said lien and for the return of the property until its lien should be satisfied and discharged. Attached to and filed with the answer was an account of the material used and work and labor done in making the repairs on the engine and tender. There is no general denial in the reply of the plaintiff to the new matter set up in the answer. The reply put at issue the truth and correctness of the itemized account, and alleged that the value of all the material furnished and labor expended in making the repairs on the engine and tender was not in excess of $2,000; alleged that the work was defectively done, pointed out specific parts of the engine that were defectively repaired, and alleged that plaintiff had to have said defects remedied; and, also, that the engine soon became unfit for service, and plaintiff was compelled to do the work over that had been done by the defendant, at a cost and loss of $500; and continued: "So that plaintiff says they are indebted to the defendant for and on account of said work and labor done and material furnished on and to said engine and tender only the sum of $2,000, which said sum they heretofore tendered to the defendant and now here in this court again tender to the defendant in full payment of their said account, and upon payment of same defendant prays judgment for the possession of said engine and tender." The case was taken to the Lawrence county circuit court, by change of venue, where it was tried, resulting in a verdict for the defendant for $3,800. Among other things recited in the judgment is the following: "It appearing to the court that the plaintiff is a railroad corporation and has said property in its possession, and that defendant in its answer claims a special interest in the same for work and material bestowed upon it in overhauling," etc., "and that the jury, by its verdict aforesaid, has assessed the value of defendant's special interest therein at the said sum of $3,800, it is therefore considered and adjudged that defendant have judgment against the plaintiff and its security, to wit, the Title Guaranty & Trust Company, of Scranton, Pa.," etc.

The plaintiff is a railroad corporation with headquarters at Jonesboro, in the state of Arkansas. The defendant has a foundry and machine shop at Springfield, Mo. On June 22, 1904, A. J. Kerfoot, general manager of plaintiff, wired defendant to know if it could put in half side sheets in a locomotive boiler. Defendant's reply was: "Yes; can begin work promptly." On the same day the engine was sent to Springfield, and also a letter written by plaintiff to defendant, explaining the work required and saying plaintiff would send its machinist, who would go over the entire engine with defendant, and that defendant was to do any additional work on the engine the machinist might direct, adding: "If you are not in a position to do any machine work, our man can get Mr. Hancock to do the work at the time he is working on the tires; but if you are in a position to do machine work, and will do it as reasonable as the 'Frisco, then our man will have instructions to give you this part of the work." On the following day defendant replied by letter: "Beg to advise that we are in a position to do all kinds of machine work and will be pleased to take up this matter with your representative when he calls, and have no doubt but that we will be able to make a satisfactory adjustment with him." On the following day plaintiff sent M. C. Azime, its machinist, to defendant with a letter stating that he was authorized to make a contract, and "you will please do the work as instructed by him," and concluded by saying: "If you succeed in doing us good work, we will send you other engines from time to time, and will give you all of our work of this class, instead of the 'Frisco Railroad." On June 27th defendant wrote plaintiff that it was impossible to estimate the cost of the repairs, after having examined the engine, but that it "would keep the cost down as low as possible and charge only a fair margin of profit" thereon, and would do a first-class job as reasonable as possible. On the 29th day of June, plaintiff replied that it appreciated defendant's "friendly words, as to cutting down the cost as low as possible, charging us only a fair margin for your profit." After this, considerable correspondence was had between the parties, in respect to the details of the work, until August 24th, when defendant wrote plaintiff that the work would be finished by September 1st, and asked it to send a man up to inspect the work and O. K. the bills. On September 3d, plaintiff sent Mr. Nelson to Springfield with authority to inspect the work, receive or reject it, and pass upon the bills. Defendant's evidence tends to show that Nelson brought a man with him who inspected the work, and that Nelson accepted it, then asked for the bills. The bills were given him, and he reported to plaintiff's general manager, and on the next day telephoned defendant that he was "instructed not to accept the bill on account of excessive charges." Defendant's evidence tends to show that the actual cost of the labor and material in making the repairs was $3,600, that the charge or cost was...