Klaber v. Lahar
| Decision Date | 24 August 1933 |
| Docket Number | 30844 |
| Citation | 63 S.W.2d 103 |
| Parties | KLABER v. LAHAR et al |
| Court | Missouri Supreme Court |
Roy W Rucker, of Kansas City, for appellants.
Henry S. Conrad, L. E. Durham, and Hale Houts, all of Kansas City for respondent.
FERGUSON, Commissioner.
Action on contract for an aggregate amount of $ 10,580.14 alleged to be due plaintiff, as administrator, thereunder. In 1925 the firm of Maley & Rixey, a partnership, composed of John H Maley and Norton B. Rixey, engaged in the business of quarrying and crushing rock, in Johnson county, Mo., for use in the construction of a state highway, selling the output, under a contract therefor, to the firm of Lahar Bros., a partnership, composed of E. L. Lahar and E. W. Lahar. On May 30, 1925, Rixey died, and on June 6, 1925, the surviving partner, Maley, was duly appointed, by the probate court of Jackson county, as administrator of the partnership estate of Maley & Rixey. The petition herein alleges that, on June 7, 1925, in his capacity as such administrator, Maley made a contract with the Lahar Bros. whereby they agreed to purchase, and did purchase, and take over the possession of, all the Maley & Rixey property, machinery, tools, and camp equipment, located at the Johnson county quarry site, and agreed to pay therefor 'such sum as the same might be reasonably worth and as appraised by the appraisers of the probate court of Jackson county'; also to reimburse the Maley & Rixey firm for expense incurred in opening the quarry, and pay all accounts then owing by Maley & Rixey for labor and materials employed and used in such rock crushing operations to June 1, 1925. The petition further states that by this alleged agreement the contract between Maley & Rixey and the Lahar Bros. under which the Maley & Rixey firm were supplying Lahar Bros. with crushed rock was canceled and terminated. On November 5, 1925, Fred W. Klaber was duly appointed by the probate court as administrator of the partnership estate of Maley & Rixey in Maley's stead, and on the 27th day of October, 1925, Klaber, as administrator, brought this action. The petition, after setting out the alleged contract between Maley, as administrator, and defendants, the Lahar Bros., as above stated, alleges that, pursuant to such 'contract and agreement,' defendants took immediate possession of said quarry, and the machinery, tools, camp, and kitchen equipment, and thereafter carried on such operations, but 'failed and refused to pay and still fail and refuse to pay plaintiff the amount due under said contract.' The answer of defendants was a general denial. A trial was had, before a jury, in the circuit court of Jackson county, with a verdict for plaintiff in the amount of $ 8,500; from the judgment thereon defendants appealed.
At the conclusion of all the testimony in the case, defendants requested the court to instruct the jury that 'under the pleadings, law and evidence' the verdict 'must be for the defendants.' The instruction was refused, and appellant's principal insistence here is that the trial court erred in overruling their demurrer to the evidence, and that same should have been sustained on the ground that the evidence was insufficient to show the existence of a complete and enforceable contract. Appellants state their contention in this manner: 'The court erred in refusing appellants' demurrer for the reason there was no testimony which showed that the minds of the parties met at the same time on the same terms.'
Before reciting the evidence most favorable to plaintiff in respect to the contract alleged and relied upon, a preliminary statement of the situation out of which, it is claimed, such contract arose will perhaps contribute to an understanding of the facts. The transactions to which we will refer occurred in 1925. A. A. Davis, appellants' uncle, had contracted to construct certain sections of state highway No. 50, in Johnson county. The Lahar Bros.' firm entered into a contract with Davis to supply the required quantities of crushed stone or rock for use in such construction work at $ 2 per ton. The Lahar Bros. obtained a quarry near the town of Holden, and installed some equipment preparatory to opening the quarry and crushing rock. At this juncture the Maley & Rixey firm became interested in the transaction and a written contract, under date of March 30, was entered into between Maley & Rixey and the Lahar Bros.' firm whereby Maley & Rixey agreed to take over the quarry, 'uncover stone, handle, crush, screen and place the same' in storage bins ready to be hauled by the Lahar Bros.' firm to the highway; to 'crush approximately 30,000 cubic yards of suitable limestone'; and 'to furnish all of the tools, labor * * * and malerial necessary' to the performance of such work. The Lahar Bros. agreed to pay the Maley-Rixey firm for crushed stone at the rate of $ 1.25 per ton delivered at the bins. It was further agreed that Maley & Rixey would crush and deliver at the bins 'an average of two hundred cubic yards of suitable crushed stone per day for each and every day except Sunday and legal holidays,' and, failing or neglecting to do so, would 'allow' Lahar Bros.' firm 'to take immediate possession' of the quarry and all equipment and operate same and charge the cost thereof to the Maley-Rixey firm. Whereupon Maley & Rixey took charge of the quarry site, constructed a camp for the accommodation of about sixty laborers, including fully equipped sleeping quarters, kitchen and dining arrangements, and a pipe line about one-fourth mile in length for bringing water to the camp; located and set up the machinery, provided the necessary tools, materials, and supplies; 'opened up' the quarry so that rock of a suitable quality could be obtained; employed 'between forty and fifty men,' and, after having thus 'opened' the quarry and put the plant in readiness for operation, carried on the actual operation of crushing stone for about four weeks, when Rixey died at Kansas City on Saturday, May 30. The following day Maley called one of the Lahars by telephone, from Kansas City, advised him of Rixey's death, requested him to advise the Maley & Rixey foreman to continue the regular plant operations at the quarry, and stated that he (Maley) 'would come down as soon as' he could. The work at the quarry was not interrupted, but continued under the direction of the foreman. On June 5, Maley wrote the Lahars that he had been detained in Kansas City in connection with business of the partnership estate, but that he would be 'down in the next day or two.' On June 6 Maley was appointed as administrator of the partnership estate, and on the next day, Sunday, June 7, went to the quarry and had a conference with the Lahars.
Maley claims, and so testified, that at this conference the contract and agreement sued on was arrived at and made subject only to the approval of Mrs. Rixey, widow of the deceased partner. Maley testified that, on that occasion after some general conversation about the situation resulting from the death of Rixey, 'they (the Lahars) wanted to know what I had to suggest'; that he then suggested that the Lahars 'buy out Mrs. Rixey's interest,' or that he 'get another partner to take Mr. Rixey's place,' or that they buy the Maley-Rixey equipment and property then located at the quarry and reimburse the Maley & Rixey firm for the expense incurred and expenditures made in 'opening up' the quarry and putting the plant in operating condition and pay labor and material accounts incurred in the operation of the plant; that the Lahars 'went off and talked it over quite awhile by themselves * * * came back,' and stated 'that they didn't believe they cared about buying Mrs. Rixey out and they couldn't afford to carry it along for two or three weeks while I was looking for a partner and they had decided to buy us out, buy the equipment and pay us for what we had done * * * that the quarry was well opened up and the money had been well spent.' Maley then testified that the Lahars made an offer or proposition, which we state in substance, that they would buy the Maley & Rixey tools and camp equipment 'and pay a reasonable amount' therefor, 'the amount to be determined by appraisers appointed by the probate court'; 'pay back what we had spent in opening up the quarry' and 'getting it started and in crushing rock up to the time of Mr. Rixey's death,' and 'pay all labor and material bills' of Maley & Rixey as of and to June 1; that they be considered as in possession and charge of, and responsible for, the plant, and the operation thereof, from and after June 1; and that their contract with Maley & Rixey for the purchase of crushed stone be canceled; that he thereupon told the Lahars their proposition was 'agreeable' to him, and he would 'put it up to Mrs. Rixey and if it was agreeable to her it would be alright -- we would deal;' that they (Maley and the Lahars) then went to the camp dining hall, and one of the Lahars suggested that he (Maley) 'go in and tell the men what the arrangement was so they would know they were working for them (the Lahars) the next day'; that, in the presence and hearing of the Lahars, he 'told the foreman' and some of the men who were present there 'what the arrangement was,' and that, the assistant foreman and timekeeper, Chester Roweth, being absent from the camp at that time, he wrote a note, identified and received in evidence as Plaintiff's Exhibit 3, and hereinafter referred to, directed to Roweth, and left same with the foreman to be delivered to Roweth upon his return. On the following day (Monday, June 8) the Lahars took possession and charge of the plant, camp, equipment, materials, and supplies, and continued in possession and charge thereof, and operated same until some time in the...
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