Kercheval v. King

• Decision Date: 31 August 1869
• Citation: 44 Mo. 401
• Parties: T. B. KERCHEVAL, Appellant, v. JAS. KING et al., Respondents.
• Court: Missouri Supreme Court

44 Mo. 401

T. B. KERCHEVAL, Appellant,

v.JAS. KING et al., Respondents.

Supreme Court of Missouri.

August Term, 1869.

Appeal from Fifth District Court.

Vories, and Woodson & Jones, for appellant.

If enough of the contract is set forth to show the obligation of defendant and the breach complained of, this is sufficient, and will work no surprise on the party. (Little v. Mercer, 9 Mo. 218; 4 Mo. 32; 2 Mo. 39; 10 Mo. 515; 1 Chit. Pl. 307; Gould's Pl. 165, § 19; Alvord v. Smith et al., 5 Pick. 232; Ferguson v. Harwood, 7 Cranch, 408; Briggs v. Murdock, 13 Pick. 306; 4 Cow. 440; 6 East. 564; 8 East. 7.)

Hall & Oliver, and Bassett & Van Waters, for respondents.

I. There is no consideration stated for defendant's promise to plaintiff. (Frazier v. Roberts, 32 Mo. 457; State v. Matson et al., 38 Mo. 491; 40 Mo. 182; 37 Mo. 34; Han. & St. Jo. R.R. Co. v. Mahoney, 42 Mo. 470.)

II. The agreement between Kercheval and Fouts, received in evidence, was improperly received. (1 Greenl. Ev. §§ 662; 3 U. S. Dig. 144, § 179; 1 Chit. Pl. 299; Swan's Pr. & Pl. 206-9; 35 Mo. 528; 20 Mo. 229; 22 Mo. 27; 19 Mo. 290; 37 Mo. 307.)

BLISS, Judge, delivered the opinion of the court.

The plaintiff filed in the Buchanan Court of Common Pleas a petition against defendants, setting forth that on the 25th of March, 1865, he entered into a written contract with Russel & Fouts for transportation and delivery to them at Virginia City, Montana Territory, of 80,000 pounds of freight at ten cents per pound in clean gold dust; that afterward, on the 11th of August, 1865, he entered into a contract in writing with defendants, by which they agreed to pay him for his freight trains, cattle, etc., mentioned in the agreement, and further, to assume for plaintiff his contract with said defendants and Fouts, and perform all its conditions, on certain conditions, to-wit: should the freight mentioned in said contract be delivered at Fort Benton before September 15, 1865, defendants should receive seven cents per pound in clean gold dust, etc.; but if delivered between September 15 and October 15, 1865, they were to receive eight cents. The contract further provided that defendants were to collect all charges against Fouts & Russel, and, after deducting what was due them, to place the balance to plaintiff's credit. The petition avers performance by the plaintiff of all the conditions of the contract, and charges that defendants collected of said Fouts & Russel $8,000 in clean gold dust, and placed no part of it to the credit of the plaintiff, and have never paid him any part of it, although $1,600 of it, worth $2,000, belonged to him, for which he asks judgment. The petition is of much greater length, though the foregoing is the substance of all its averments except one or two immaterial ones. The contract between plaintiff and defendants was filed with the petition, though the contract between plaintiff and Fouts & Russel was not filed, for the reason, as alleged, that it was surrendered to defendants.

The defendants admit the contract between them and the plaintiff, but deny that its conditions were fulfilled by him; admit the contract between plaintiff and Fouts & Russel; admit that they paid him nothing, and deny that they collected anything on it; aver that the freight mentioned in it was not delivered to them for transportation until after the 15th of October, when they transported it to Fouts & Russel, although they were at Fort Benton with their teams, and waited a long time to receive it, and they claim damages for the delay. The defendants also set up a part of the contract, merely alluded to but not described in the petition, by which the plaintiff sold them his freight trains, cattle, etc., and aver that a portion of the property was not delivered, and claim damages in consequence.

The plaintiff, in reply, does not deny the conditions of the contract set up by defendants, but only its breach, and also the delay at Fort Benton. The case went to the jury without objecjection to the pleadings by demurrer or motion. The testimony of several witnesses on both sides was submitted, and the plaintiff obtained a verdict and judgment for $2,100.

The instructions asked and given on both sides were full, and fairly presented the law of the case. They sustained every position taken by defendants except one, hereafter to be considered, in relation to the admission of the contract in evidence, and one cutting off the evidence of the market value of gold dust. The jury were expressly charged that they must find that the freight mentioned in the Fouts & Russel contract was at Fort Benton, ready for delivery to the defendants for transportation, before the 15th of October, or they were not liable to the plaintiff for the difference between the eight and ten cents per pound.

The first point made in this court is upon the petition, that it is radically defective in not stating a consideration for defendants' promise, and will not sustain a verdict.

The plaintiff had made a contract with Fouts & Russel for transporting 80,000 pounds of freight at ten cents, and defendants agreed to transport the same for eight cents if delivered before a certain time, collect the ten cents, and pay the plaintiff the difference. The objection, if I understand it, is that no consideration was set forth for that agreement, and therefore, although no motion was made or demurrer filed, and no objection of any kind taken to it before trial, the judgment should be reversed. Judgments can not be reversed for mere informalities. Rules of pleading are not traps, but safeguards, and their violation should ordinarily be objected to by motion or demurrer before trial upon the merits. It is true, if the record is radically defective--if it shows that there was no obligation, no legal indebtedness, as that judgment was rendered upon a nudum pactum--it is a substantial error. But the mere omission to set out a fact as the consideration, or the whole of the consideration, on account of which omission a demurrer could have been maintained, or any fact that must have been found by a jury, is cured by verdict. (Gen. Stat. 1865, p. 671, § 19; Jones v. Louderman, 39 Mo. 287; Richardson v. Farmer, 36 Mo. 35.) But it appears...