Musser. v. Brink

• Decision Date: 31 October 1883
• Citation: 80 Mo. 350
• Parties: MUSSER. Appellant. v. BRINK.
• Court: Missouri Supreme Court

80 Mo. 350

MUSSER. Appellant.

v.BRINK.

Supreme Court of Missouri.

October Term, 1883.

Appeal from Livingston Circuit Court.--HON. E. J. BROADDUS, Judge.

REVERSED.

C. H. Mansur for appellant.

The law of this case was decided in appellant's favor when the case was here before, (68 Mo. 242,) and it is now res adjudicata. Wells on Res Adjudicata, §§ 513, 617; Phelan v. San Francisco, 20 Cal. 45; Thompson v. Dill, 34 Ala. 534; Hawley v. Smith, 45 Ind. 183. The facts as developed on the re-trial, do not take the case out of the doctrine of res adjudicata.

John A. Cross and John E. Wait for respondent.

The parties to the contract were partners as the case now stands, conceding the correctness of the former decision. 68 Mo. 242. In determining the meaning of a written instrument, the acts of the parties are entitled to great weight. Patterson v. Scott, 24 N. Y. 40; Gunnison v. Bancroft, 11 Vt. 493; People v. Gosper, 3 Neb. 285; Nash v. Town, 5 Wall. 689; Ricker v. Fairbanks, 40 Me. ___; Cook v. Barr, 39 Conn. 296. An injunction will not be granted when the right is doubtful. Water Co. v. McCallum, 5 Pa. St. 93. Nor because of the mere apprehension of the petitioner that a wrong may be done. Goodwin v. Railroad Co., 43 Conn. 494.

EWING, C.

This case was before this court in 1878, (68 Mo. 242,) and was reversed and remanded. Upon the hearing at that time, the petition, answer and contract were set out in full, with the evidence at the former trial; and so far, reference is had to that report. It is not necessary, for a full understanding of the questions involved, to re-state the pleadings and contract. On the new trial there was additional evidence on the part of the plaintiff; and the defendant offered evidence to maintain the issues on his part. At the first trial the defendant offered no evidence.

The plaintiff introduced William Middaugh, who said defendant told him, he had ordered Musser off the place. Said he was going to send the cattle to DeKalb county; said he had a right to sell them, but wanted to feed up the crop. That Musser came to his house in July, and at his request went to see Brink, and told him Musser had sold the cattle, and if he, Brink, would meet him at Cameron he would settle with him.

Angeline Moss testified, that at her house in February, 1875, she heard Brink say he intended to sell the cattle and put the money in his pocket. On cross-examination this witness said Brink said Mr. Musser would not beat him much.

A. W. Frederick, for plaintiff, testified that Brink told him he proposed taking the cattle to DeKalb county, north of Osborne. That Musser owned half the crop and the farm.

S. J. Moss had conversation with Brink on Musser's farm about September, 1874, about the cattle. Brink said he wanted me to herd them for him next summer in DeKalb county. Musser was present and said Brink was all right, and would do as he said. In February, 1875, Brink then told me Musser had become dissatisfisd about the cattle; that he intended to take and herd them in DeKalb county, and said he did not think old man Musser would beat him much; that he intended to sell the cattle himself.

B. F. Jones testified: In the fall of 1875 stayed all night at Brink's. He said he had intended to take and herd them in DeKalb county; that he had, or claimed the right to sell them, and that Musser would never have known it if Moss had not betrayed him; that he knew it was Moss, because he had not told any one else he intended to sell them.

Geo. Smith testified as to the financial standing of Brink; that he had no real estate, and was worth probably $800 or $1,000, “outside of his household plunder.”

Solomon Musser, on his own behalf, testified as follows: September, 1874, I had eighty head of cattle on the farm of Conrad Smith, in Daviess county, about fifteen miles from my place in Caldwell county, where defendant lived; they were two-year-old past steers. I turned them over to defendant at a value of $2,200 at that time. He gave me a receipt for them. He was to take them into his possession at Coon Smith's, and was to pay for their herding up at Smith's until feeding time came that fall. I was present at the conversation when S. J. Moss was present. At that time I had confidence in Brink, and made no objection when he proposed to take or send the cattle the next spring and summer to DeKalk county to herd. Did not know at that time he claimed any right to sell the cattle under the agreement. During that winter I became much dissatisfied with Brink, and with his management on my place. Under the agreement, he was to feed hogs on the place with our joint corn. When I was at the place I learned, and could see, that hogs had been fed, but could not find the hogs; could see where they followed the cattle, but the hogs were not in sight. I learned that he had fattened twelve hogs and sent them to Lathrop to sell that fall. He also sold some hogs in Cameron, but don't know how many. I think he sold in all about $600 worth. About April, 1875, I learned he was determined to remove the cattle out of the county; I opposed it. I met Brink at the farm of Stucker, about a mile and a half from where Brink lived. I there told him I did not want the cattle moved. He then proposed to give a bond, for the purpose of securing and returning me the cattle. Proposed to give me one Fowler, of Ray county, on the bond. Wanted me to go with him to Ray county to see Fowler. I never told him whether I would or not accept the bond. Do not remember that he proposed to give Dr. Crawford on the bond. Next day word came to me that Brink said he intended to remove the cattle. I went that night to Kingston, the county seat, and got out the papers for this injunction suit, and the next day the sheriff and myself went to Brink's to serve them. We got there early. Before I got there, I told the sheriff to say nothing about it until I could talk with Brink, as I wanted to have a talk with him, and I might be able to compromise it with him. We both went into the house and sat down, when Brink said, I suppose you have come to attach the cattle. I told him I had no attachment, whereupon Brink jumped up out of his seat, got very mad, accused me of swindling him in a receipt I had given him for some pasturing the fall before, and ordered me off the place, and forbid me ever to come back or set foot on the place while he was on it. I then got up and told the sheriff to do his duty and left.

Cross-exemination: The fuss I had with Brink when the sheriff was there, took place just as I have told it. It was not over something else. I will state it again, just as it was, and let the judge decide what it was. Brink said, I suppose you have come to attach the cattle. I said I had no attachment. He then got mad and accused me of swindling him in a receipt about pasturing some cattle the fall before, and ordered me off the place. The receipt Brink gave me for the cattle I left at home. I did not know it would be wanted here. I had no notice to bring it. I think it reads about like this: September, 1874. I hereby receipt for eighty head of two-year-old past steers, to Solomon Musser, and guarantee him in payment for them $2,200, and one-half of the profits of feeding them for market, and I am to pay Conrad Smith's bill for herding them. I sold the cattle in July, 1875. I am to pay Brink one-half the profits, and I am to pay for herding the cattle until feeding time. Brink did talk about giving me a bond, but it was never agreed upon or completed. Neither the amount nor who should go upon it. I never said I would take it, nor do I know that I said I would not. We were talking about it when I learned he was going to move the cattle, and I got out the injunction. I don't remember any talk about Crawford going on the bond.

Plaintiff then read in evidence the written contract, which will be found in 68 Mo. 242, and rested.

The...