Keyes & Watkins Livery Co. v. Freber

• Decision Date: 03 November 1903
• Citation: 76 S.W. 698,102 Mo.App. 315
• Parties: KEYES & WATKINS LIVERY CO., Respondent v. FREBER, Appellant
• Court: Missouri Court of Appeals

76 S.W. 698

102 Mo.App. 315

KEYES & WATKINS LIVERY CO., Respondent v. FREBER, Appellant

Court of Appeals of Missouri, St. Louis

November 3, 1903

Appeal from St. Louis City Circuit Court.--Hon. Warwick Hough Judge.

AFFIRMED.

STATEMENT.

The suit was commenced before a justice of the peace to recover damages for a breach of the following contract duly executed by plaintiffs and defendant, to-wit:

"This contract entered into this second day of October, 1899, by and between the Keyes & Watkins Livery Company, party of the first part, and George Freber, party of the second part witnesseth: That the said party of the second part hereby agrees to remove from the stables of the said party of the first part, on the northwest corner of Bell avenue and Grand in the city of St. Louis, Missouri, all the manure, that may accumulate there every day (Sunday hauling excepted) for the term of one year, from October 2, 1899, to October 2, 1900 for the sum of seventy-five dollars, to be paid him by said party of the first part, on the second day of October, 1900. It is further agreed, that should the said party of the second part at any time during the period above mentioned, refuse or neglect to remove the manure as above mentioned, this contract may, at the option of the said party of the first part, be declared null and void, and the said party of the second part shall forfeit any claim which he may have against the said party of the first part, under this contract, and shall pay to the said party of the first part the sum of fifty dollars for non-fulfillment of this contract. It is also agreed that should the said party of the first part at any time during the term above mentioned, refuse to allow the said party of the second part to remove the manure, as above mentioned, or dispose of any part thereof to any other party, without the written consent of the said party of the second part, said party of the first part shall pay to the said party of the second part the full sum of seventy-five dollars, as above stipulated in this contract, and shall become null and void."

The plaintiffs did not file the contract before the justice, but set it out in full in their complaint. Defendant filed a counterclaim. A trial before the justice resulted in a judgment for the defendant. Plaintiffs appealed to the circuit court, where the cause was tried anew by the judge sitting as a jury, and plaintiffs recovered judgment for $ 50. Defendant duly appealed to this court.

On the trial the evidence showed that defendant faithfully performed the contract until about the twenty-fifth of February, 1900. That thereafter he failed and refused to remove any manure from the plaintiff's stable. On the trial defendant offered to prove that he was a gardener and used a certain kind or character of manure, to-wit, horse manure mixed with shavings or sawdust; that when he entered into the contract he saw by inspecting plaintiffs' stable they were accumulating this character of manure at their stables and for this reason he entered into the contract; that afterwards, in February, 1900, plaintiffs changed the bedding for their horses, using straw instead of shavings or sawdust; that he could not use manure mixed with straw without first making it into compost, and for this reason he stopped the hauling. The court excluded this evidence, to which ruling defendant excepted.

Judgment affirmed.

James M. Southerland for appellant.

(1) The motion presented by the appellant to dismiss on the ground that the written contract was never filed with the justice, should have been sustained. Sec. 3852, R. S. 1899; sec. 3853, R. S. 1899; Buzzard & Hapeman, 61 Mo.App. 464; Olin v. Zeigler, 46 Mo.App. 193; Phoenix Ins. Co. v. Foster, 56 Mo.App. 197. (2) The court erred in sustaining objection to evidence offered by defendant to explain the subject-matter of the contract. Long v. Long, 44 Mo.App. 141; Greening v. Steele, 122 Mo. 294; Brown v. Bower, 90 Mo. 190; Black River, etc., v. Warner, 93 Mo. 381; Edward v. Smith, 63 Mo. 419; Bunce v. Beck, 43 Mo. 266; Moss v. Green, 41 Mo. 390; Halliday & Co. v. Lesch, 85 Mo.App. 285; Skinker v. Haagsma, 99 Mo. 208; Walsh v. Edmisson, 46 Mo.App. 282.

Collins & Chappell for respondent.

(1) The court below committed no error in overruling defendant's motion to dismiss, said motion being based upon the alleged ground that the contract between plaintiff and defendant was not filed with the justice of the peace. R. S. 1899, secs. 3852 and 3853; Sublett v. Nolan, 5 Mo. 516; Boatman v. Curry, 25 Mo. 433; Schenck v. Stumpf, 6 Mo.App. 381; Kliebold v. Grober, 6 Mo.App. 573; Lord v. Koenig, 7 Mo.App. 453; St. L. Trust Co. v. Amer. R. E. & Inv. Co., 82 Mo.App. 260; Crenshaw v. Ins. Co., 71 Mo.App. 42; R. S. 1899, sec. 4071; Brown v. Bowen, 90 Mo. 184; Bigelow on Estoppel, 562. (2) The fact that plaintiff changed the character of the manure, which was the subject-matter of the contract, affords the defendant no defense for having abandoned the contract. Wright v. Fullerton, 60 Mo.App. 451; Price v. Van Stone, 40 Mo.App. 207; Fruin v. Railroad, 89 Mo. 397; Whittemore v. Sills, 76 Mo.App. 248; 7 Am. and Eng. Ency. of Law (2 Ed.), 114; 2 Am. and Eng. Ency. of Law (2 Ed.), 287; Carter v. Holman, 60 Mo. 504; Wolfort v. Railroad, 44 Mo.App. 330; Emory v. Joice, 70 Mo. 537; Eckerle v. Chouteau, 99 Mo. 635; Ellis v. Harris, 104 Mo. 270; Weil v. Schwartz, 21 Mo.App. 372.

BLAND, P. J. Reyburn and Goode, JJ., concur.

OPINION

BLAND, P. J. (after stating the facts as above).

1. For a reversal of the judgment defendant makes two contentions. The first is that the justice acquired no jurisdiction of the subject-matter of the suit for the reason the contract sued on was not filed with him. The statute in respect to this matter is, in substance, that where the demand is founded upon a written instrument executed by the other party, it shall be filed with the justice before summons is issued. Our Code of Civil Procedure requires a plaintiff or defendant when his claim or counterclaim is founded on a written instrument executed by the other party, to file the instrument with the pleading. The object of these statutes is to require the party...