Latshaw v. Stoddard

• Decision Date: 18 December 1916
• Docket Number: No. 11477.,11477.
• Parties: LATSHAW et al. v. STODDARD et al.
• Court: Missouri Court of Appeals

194 S.W. 727

LATSHAW et al. v. STODDARD et al.

No. 11477.

Kansas City Court of Appeals. Missouri.

December 18, 1916.

On Rehearing, April 30, 1917.

Appeal from Circuit Court, Jackson County; O. A. Lucas, Judge.

"Not to be officially published."

Action by Henry J. Latshaw and others against C. B. Stoddard and others. Judgment for plaintiffs, and defendants appeal. Affirmed in original opinion and after a reargument.

Lathrop, Morrow, Fox & Moore and Cyrus Crane, all of Kansas City, and H. S. Miller, of Joplin, for appellants. George F. Anderson and Jesse E. James, both of Kansas City, for respondents.

JOHNSON, J.

The defendants, a partnership, owned a mining lease on a tract of land near Joplin which consisted of 16 lots each 200 feet square, and were operating a mine on 2 of those lots which adjoined land being mined by plaintiffs. On May 20, 1911, defendants entered into an oral contract with plaintiffs by the terms of which plaintiffs agreed to perform the service of removing from defendant's mine the water which continuously seeped in and accumulated there, and defendants agreed to pay for said service a royalty of 5 per cent. of the proceeds they realized from ore taken out of their mine. The respective mines of the parties tapped the same underground water basin so that a pump of sufficient power to keep plaintiffs' mine exhausted of water would perform the same service for defendants.

Pursuant to the contract plaintiffs installed and operated such a pump and kept defendants' mine clear of accumulations of water, enabling them to pursue their mining operations successfully. Defendants paid the royalty for four months, and then ceased paying, but plaintiffs continued to render the service, and on June 19, 1912, began this suit to recover the agreed compensation which had accrued at the time of the commencement of the suit. Defendants answered, interposing defenses, the nature of which will be disclosed in our discussion of the case. A trial to a jury resulted in a verdict and judgment for plaintiffs for $1,393.86, and defendants appealed.

Defendants argue that plaintiffs have no cause of action, for the reason that shortly after the oral contract of hiring was entered into defendants leased their property to plaintiffs, and in the written lease provided that plaintiffs should keep the demised property clear of water which would prevent the successful prosecution of mining operations thereon, and that all prior and contemporaneous oral agreements, including the one in controversy, were merged into the written lease. The rule invoked is elementary (Boggs v. Laundry Co., 171 Mo. 282, 70 S. W. 819; 1 Greenleaf on Ev. [16th Ed.] § 275; Davis v. Gann, 63 Mo. App. 425), but has no application to the case in hand. The written lease conveyed only 14 of the 16 lots held by defendants, and the mine for which the services were performed under the oral contract was on the 2 lots not conveyed, but retained, by defendants.

The subject-matter of the oral agreement was the performance of services for the mine on the 2 lots afterward reserved by defendants, while the subject-matter of the provision in the subsequent written lease was the performance of a like service for the 14 lots conveyed in the lease. These were independent consistent contracts to which the rule of merger could have no proper application. Brown v. Bowen, 90 Mo. loc. cit. 190, 2 S. W. 398; Roe v. Bank, 167 Mo. loc. cit. 427, 67 S. W. 303; Greening v. Steele, 122 Mo. 287, 26 S. W. 971; Wigmore on Evidence, § 2430. The hiring in question was for an indefinite time, and therefore one that could have been terminated at will by either party. Davis v. Insurance Co., 181 Mo. App. 356, 172 S. W. 67; Brookfield v. Drury College, 139 Mo. App. 365, 123 S. W. 86; Finger v. Brewing Co., 13 Mo. App. 310; Evans v. Railroad, 24 Mo. App. 114.

On October 7, 1911, one of defendants notified plaintiffs by letter of the termination of the employment, but substantial evidence was introduced by plaintiffs to the effect that defendants, several days later, recalled this notice and agreed that the service might be continued. We therefor cannot hold, as a matter of law, that the employment was discontinued by defendants. The court did not err in refusing to direct a verdict for defendants.

There is no prejudicial error in the record, and the judgment is affirmed. All concur.

On Rehearing.

BLAND, J.

The original opinion in this cause was written by JOHNSON, J., and handed down on December 18, 1916. Thereafter appellants filed their motion for a rehearing, which was granted, and the case was reargued at the March term, 1917, of this court before the court as now constituted. We have carefully gone over the abstract of record and briefs in this case, together with the motion for rehearing and the opinion, and we find nothing to cause us to change the result arrived at in said opinion, but, in deference to counsel for appellan...