Musser v. Brink

• Decision Date: 31 October 1878
• Citation: 68 Mo. 242
• Parties: MUSSER, Appellant, v. BRINK.
• Court: Missouri Supreme Court

68 Mo. 242

MUSSER, Appellant,

v.BRINK.

Supreme Court of Missouri.

October Term, 1878.

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

C. H. Mansur for appellant.

H. M. Pollard for respondent.

SHERWOOD, C. J.

The petition in this case is as follows: Plaintiff states that on or about the 13th day of March, 1874, he entered into a written contract with the defendant, renting to him, the said defendant, a farm, the property of the plaintiff, situated in the township of Mirabile, in the county of Caldwell, and State of Missouri, from the 1st day of March, 1874, for the term of three years, immediately following the said date last aforesaid; that the defendant thereupon took the immediate possession of said land under said contract; that there was a provision in said contract in words as follows, to-wit: And it is further agreed by and between said parties (referring to plaintiff and defendant) that the party of the first part is to furnish money sufficient to purchase stock enough to eat up the said grain or produce raised on said farm, to-wit: The hay, oats and corn, and to not charge interest on any such money, and it is agreed that when any sale of any of said stock is made the party of the first part (referring to the plaintiff) is to first have the amount of the purchase money thereof, and then the balance is to be divided equally between said parties; that pursuant to the provision of said contract last recited, the plaintiff did, on or about the _____ day of November, 1874, purchase eighty head of two-year old cattle, and did, on or about the day and year last named, deliver the same over to the defendant to feed and care for under the provision of said contract above recited; that defendant, from the date last aforesaid, did feed and take care of said cattle on the said farm of the plaintiff, up to the present time; that by the terms and spirit of said contract the said cattle were to be fed and cared for in the county of Caldwell, aforesaid, and on the said farm above referred to; that defendant now threatens and is about to remove said cattle out of Caldwell county, and to take them to the county of DeKalb, State of Missouri, a distance of about forty miles, contrary to the wish of the plaintiff and to the spirit and terms of said contract, and that by the defendant so taking said cattle out of the county of Caldwell, as aforesaid, the plaintiff will be in great danger of losing said cattle; that if they are so removed he will be prohibited from exercising any control over the same; that he has invested in said cattle the sum of $2,200; that defendant is wholly insolvent; that the plaintiff has good reason to believe, and does believe, that if the defendant is permitted to remove said cattle, as aforesaid, out of Caldwell county, he, the said defendant, will sell and dispose of the same and appropriate the proceeds thereof to his own use; that plaintiff is wholly without remedy except by this action; plaintiff therefore asks that a writ of injunction issue, restraining and prohibiting the said defendant from removing said cattle from the county of Caldwell, and for such other and further orders as the plaintiff may be entitled.

SOLOMON MUSSER.

Which petition is duly sworn to. Upon which petition a restraining order was issued. To which the following answer was filed:

Defendant, for answer to plaintiff's petition, denies that plaintiff, in pursuance of the specification in said contract quoted in said petition, on or about the _____ day of November, 1874, or at any other time, furnished defendant eighty head of cattle, or any other number whatever, in any way whatever, or that he delivered him said number or any number; denies that by either the terms or spirit of said contract defendant was to keep the cattle bought by him in pursuance thereof, in said county, or to be fed or cared for there on said farm, further than to feed them the hay, corn and oats grown on said land; denies that he now threatens, or that he is now about to remove said cattle out of this county, or to take them to DeKalb county, Missouri, contrary to the wish of plaintiff, or otherwise, or that it is against the spirit or letter of said contract to move at this season or the spring season, said cattle out of this county, or that plaintiff would be in great danger, or in any danger, of losing said cattle if they were taken to DeKalb county, Missouri, contrary to the wish of plaintiff or otherwise, or that it is against the spirit or letter of said contract to move, at this season or the spring season, said cattle out of this county, or that plaintiff would be in great danger, or in any danger, of losing said cattle if they were taken to DeKalb county; denies that he has any right to exercise any control over said cattle, or that he has invested in them one dollar, except as hereinafter stated, or that defendant is insolvent, or that he believes or has any reason to believe, that defendant would sell said cattle and appropriate the proceeds to his own use. Defendant, for further defense to plaintiff's petition, admits the leasing of said farm, but alleges that the plaintiff was to and did furnish him $2,200, for which he gave his receipt, with which money defendant bought said cattle; that at the time of entering into said lease, and the time of purchasing said cattle, it was distinctly agreed and understood by the parties that defendant was to graze said cattle during the spring and summer and autumn, wherever he could get the best and cheapest grazing for them; that there was not sufficient commons in Caldwell county on which he could graze said cattle, and that he owned in DeKalb county 640 acres of excellent pasturage, which was only about twenty miles from said farm, and to which, with the knowledge and consent of plaintiff he was about to move said cattle, when he was enjoined by the writ herein; whereupon he was forced to and did expend $320 for pasturing said cattle for the season of 1875, when he could have grazed them on his said pasture in DeKalb county entirely free of cost; that he has been forced to expend large sums of money, viz: $250 in defending said suit, wherefore he prays that said injunction be dissolved, for said sum of $570 damages, and other proper relief.

Plaintiff filed his reply, one of general denial.

The lease and agreement is as follows:

This deed of lease made and entered into this 13th day of March, 1874, by and between Solomon Musser, of the county of Caldwell, and State of Missouri, party of the first part, and Marion Brink, of said county and State, party of the second part, witnesseth: That the said party of the first part, in considerations of the covenants, agreements and stipulations hereinbefore mentioned, doth, by...