Nugent v. Armour Packing Co.

• Decision Date: 07 March 1904
• Citation: 81 S.W. 506
• Court: Missouri Court of Appeals
• Parties: NUGENT v. ARMOUR PACKING CO.<SMALL><SUP>*</SUP></SMALL>

81 S.W. 506

NUGENT v. ARMOUR PACKING CO.^*

Kansas City Court of Appeals. Missouri.

March 7, 1904.

PARTIES — PARTNERSHIP — CONTRACTS — CONSTRUCTION — GOODS SOLD AND DELIVERED— REASONABLE VALUE—INSTRUCTIONS—ABSENT WITNESSES—ADMISSIONS.

1. In an action for the price of stone claimed by plaintiff to have been ordered independently of a contract for the sale of a different kind of stone, a person to whom plaintiff had promised a half interest in the profits of the contract was not a necessary party.

2. Where plaintiff sold defendant rubblestone, and, at defendant's request, furnished a different kind of stone, shown by the evidence to be called "footing" or "dimension stone," and sued for the price of such stone, an instruction authorizing a verdict for plaintiff if he furnished "footing or heavy dimension stone" was not erroneous, the terms being synonymous.

3. Plaintiff contracted to sell a quantity of rubblestone to defendant, and, at defendant's request, furnished some of a different and more valuable kind of stone. In an action to recover for this stone, plaintiff testified that he had been paid for the rubble furnished, and the court charged that, if plaintiff recovered, he was entitled to the reasonable market value of the stone so furnished. Held not misleading, as it could only have been understood to refer to the stone for the price of which the action was brought.

4. By admitting that an absent witness would, if present, testify as alleged in support of a motion for a continuance, a party does not admit that such testimony is true, but has the right to disprove it.

5. Where defendant ordered stone of a certain size of plaintiff, but plaintiff delivered a different size, which defendant nevertheless used in its building, defendant was liable for the value of the stone, whether ordered by defendant's contractor or not.

6. Where an issue has been submitted by instructions, a party cannot complain of the refusal of other instructions presenting the same issue.

7. In an action to recover the reasonable value of stone claimed by plaintiff to have been ordered by defendant by letter after a contract for other stone had been made, and claimed by defendant to have been furnished under the contract, evidence of defendant's unexpressed intentions in making the contract and writing the letter was properly excluded.

8. Neither was evidence as to what defendant paid others under contracts for similar stone admissible.

Appeal from Circuit Court, Jackson County; Wm. B. Teasdale, Judge.

Action by David Nugent against the Armour Packing Company. From a judgment for plaintiff, defendant appeals. Affirmed.

Frank Hagerman and Arthur F. Smith, for appellant. Lathrop, Morrow, Fox & Moore and Cyrus Crane, for respondent.

SMITH, P. J.

The plaintiff and defendant entered into a written contract, by the express terms of which the plaintiff agreed to load upon the cars at his quarries 3,500 perches of rubblestone, at 55 cents per perch of 2,240 pounds for heavy rubble, and 50 cents per perch of 2,240 pounds for common, as soon as requested by the defendant. About six weeks after the date the above contract was entered into, the defendant's purchasing agent, Mr. Jones, wrote the plaintiff to say that, in "loading our stone for footing, that is of course the first stone to be used, we want to get stone of as large bearing face as possible. Our footing course is 8 ft. in width and we would like to have some of the stone as large as 8 ft. in length and 4 ft. wide, if you can handle same. We want as many of them of this character as you can furnish for footings. In loading these cars to-morrow, please give your personal attention to this and see how well you can please us on the deal." It is not disputed that the plaintiff furnished to the defendant 306 perches of rubble and 1,000 perches of other stone, which was received by defendant and used in the construction of one of its buildings. The plaintiff's contention is that the 1,000 feet of stone was not "rubble," but was what was known among stone masons as "footing or heavy dimension stone," and that it was not the kind which he was required under his contract to furnish the defendant, or, stated in another way, it was furnished outside of and independent of the contract, and that therefore the price to be charged for it was not governed by that named in the contract for rubblestone. The defendant's contention was that all the stone received by it was furnished by plaintiff under the contract at the price therein specified.

It must be conceded that if all the stone furnished was of the kind called for by the contract, the defendant has paid the full contract price thereof, and is not, therefore, indebted to plaintiff. So the main issue of fact in the case was as to whether or not the 1,000 perches of stone was all rubble, or whether or not it was "footing or heavy dimension stone"; and, if the former, the plaintiff ought not to have recovered, and, if the latter, he ought.

Experienced quarriers and others were called as experts to testify their opinion as to whether or not "footing or heavy stone" are embraced in the definition of the term "rubblestone," or, in other words, whether these terms are all interchangeable. The plaintiff and his witnesses testified that "rubblestone" meant any irregular sized stone that may be handled without machinery, and by "footing or heavy dimension" stone was understood to be stone taken out of a quarry, of a given size. Plaintiff testified that "in taking out rubblestone you can get in a bench of rock, and stick a hole in it—a good big hole—say, with a drill, a quarter of an inch bit, and put a charge of powder in it, and you can explode it and spill the rubble all around you, so you get at them and break them up at the same time, so that you can handle them by hand, and load them in a wagon by hand; and, in getting out dimension stones, you have got to drill them—plug and feather drills; got to have more drills, and got to handle them with derricks; and it costs four times as much to get out dimension stone as it does rubble." The plaintiff further testified that, in getting out the 8x4 and 5x3 stone ordered by defendant, he went on the benches of the quarry, and, with a rule, laid them off, measured the lengths and widths, made a line, and showed the men where to put the tools, plugs, and feathers, etc. He further testified that all the stone furnished the defendant, except the 309 perches of rubble, was dimension stone, which he handled with a derrick. The defendant's witnesses testified that by the term "rubble" was meant stone of irregular shapes and sizes, just as they come out of the quarry—large stones being called "heavy rubble," and small ones "light rubble"; that rubble that could be lifted by hand was called "light or common rubble," and that which could not was called "derrick rubble"; that derrick rubble and heavy rubble were the same thing; that any stone that was drilled out with "plug and feather"—that which is so taken out to approximate a certain size in feet and inches—was called "dimension stone." The defendant's witnesses all testified that there was no dimension stone included in that furnished by plaintiff to defendant.

The case was submitted to the jury, whose verdict was for plaintiff.

1. The questions arising on the record, and which we are obliged to decide, relate mainly to the action of the court in the giving and refusing of instructions. The defendant objects that the court erred in its action in giving the plaintiff's first, which told the jury "that defendant pleads in its answer that one Emmet Starr is a necessary party to this action. With reference thereto, the court instructs you that if you find from the evidence that said Starr was not a party to the contract or contracts, if any, made between plaintiff and defendant, and that defendant did not order the stone in question from said Starr, and that the arrangement, if any, between plaintiff and said Starr, was that plaintiff agreed either to do the right thing by said Starr in payment for services that said Starr might render plaintiff, or if plaintiff merely agreed to give said Starr some...