Osage Tie & Timber Co. v. Gorg-Murphy Timber & Grain Co.

• Decision Date: 06 February 1917
• Docket Number: No. 14565.,14565.
• Citation: 191 S.W. 1026
• Parties: OSAGE TIE & TIMBER CO. v. GORG-MURPHY TIMBER & GRAIN CO.
• Court: Missouri Court of Appeals

191 S.W. 1026

OSAGE TIE & TIMBER CO. v. GORG-MURPHY TIMBER & GRAIN CO.

No. 14565.

St. Louis Court of Appeals. Missouri.

February 6, 1917.

Appeal from St. Louis Circuit Court; Rhodes E. Cave, Judge.

"Not to be officially published."

Action by the Osage Tie & Timber Company against the Gorg-Murphy Timber & Grain Company. Judgment for plaintiff, and defendant appeals. Affirmed.

Jos. T. Davis, of St. Louis, for appellant. E. T. & C. B. Allen, of St. Louis, for respondent.

ALLEN, J.

This is an action in quantum meruit to recover the reasonable value of services alleged to have been rendered by plaintiff to defendant in loading, transporting by water, unloading, and saving from destruction, certain railroad ties of defendant. Both parties to the action are corporations. The cause was tried below before the court, without the intervention of a jury; a jury having been waived, and resulted in a finding and judgment for plaintiff on all of the five counts of its petition, and for plaintiff on a counterclaim interposed by defendant. From this judgment, defendant prosecutes the appeal before us.

In the first count of the petition it is alleged that on or about July 7, 1910, at the instance and request of defendant, plaintiff caused to be loaded at "Star Landing," "Hines Landing," and "Joy Landing," on the Mississippi river, 7,130 ties, from the bank of said river upon barges. It is averred that the reasonable value for such services was 1½ cents per tie for 6,980 of these ties, and 2 cents per tie for 150 thereof, making a total of $107.70, for which a recovery is sought.

The second count seeks to recover $49.58, as being the reasonable value of plaintiff's services in collecting and hauling to the landing certain of the ties mentioned in the first count, which, it is said, were strewn along the river bank at such distances from the landing as to make such hauling necessary in order to load them upon the barges.

The third count seeks to recover $403.83, as being the reasonable value of plaintiff's services, rendered at defendant's request, in transporting 4,751 of the 7,130 ties mentioned in the first count (the remainder having been lost in transit) from "the neighborhood of Kinney's point, on the Mississippi river, to Joppa, Ill., on the Ohio river, and in unloading the same and placing them on cars at said point of destination.

The fourth count seeks a recovery of $307.30, as being the reasonable value of plaintiff's services, rendered at defendant's request, in loading 3,703 ties on a barge at "a landing or landings below the city of St. Louis, on the Mississippi river," on or about August 1, 1910, towing said ties to East St. Louis, Ill., and unloading and delivering them to defendant there.

By the fifth count plaintiff seeks to recover for services rendered in an effort to save from destruction certain of defendant's ties, mentioned in the first count, after plaintiff's barge had become stranded on a sand bar in the river. It is not alleged that the services were rendered under such circumstances, but it is averred that they were rendered at defendants' instance and request, at or near Kinney's Point, on the Mississippi river; that they were reasonably worth $163.68, and consisted of the following items, viz.:

"First, cutting binders for ties, $8; second, transferring said 7,130 ties from barge to deck barge, $105; third, five days' use of small deck barge for transferring ties to sand bar, $15; fourth, towing barge to sand bar, $35.68."

In each of the five counts it is alleged that demand was made upon defendant on August 8, 1910. And the petition concludes with a prayer for judgment in the aggregate sum of $1,095.09, with interest from said August 8, 1910.

For answer to the first count defendant admits that plaintiff caused the 7,130 ties to be loaded on barges at the landing mentioned, and denies generally the other allegations of said count. The answer to the second count is a general denial. The answer to the third count admits that plaintiff unloaded the 4,751 ties from a barge at Joppa, Ill., and loaded them on cars, and denies generally the other allegations of this count. The answer to the fourth count admits that at defendant's instance and request plaintiff loaded the 3,703 ties on a barge, as alleged, and unloaded them at East St. Louis, and delivered them to defendant, and denies generally the other allegations of this count. The answer to the fifth count is a general denial.

By its counterclaim defendant seeks to recover $734.85 as being the reasonable value of 2,379 ties after deducting plaintiff's transportation charges, which, it is alleged, plaintiff, as a common carrier, undertook to transport from the landings mentioned in the first count to Joppa, Ill. (being a part of the 7,130 ties mentioned), but which plaintiff failed and refused to there deliver to defendant.

Plaintiff's answer to defendant's counterclaim alleges that the said 2,379 ties "were lost through an act of God, and perils of navigation, in an unusual shifting of the channel of the Mississippi river, and an unprecedented flood, which plaintiff could not have foreseen or anticipated, and not due to any negligence of plaintiff contributing thereto." Defendant's reply thereto puts these allegations in issue.

I. There was indeed but little by way of defense to the causes of action pleaded in the first four counts of the petition. The trial court found the issues for plaintiff on all of them, and found that plaintiff was entitled to recover the amounts respectively alleged to be due, with the exception that on the second count the court found that under the evidence plaintiff was entitled to $41.40, instead of $49.58, the amount demanded. The evidence abundantly supports these findings. It was shown beyond doubt that plaintiff rendered the services in question at defendant's request. And the evidence adduced went to show that the various amounts allowed plaintiff were the reasonable value of the respective services rendered. There was some dispute below as to the oral agreement or understanding between the parties respecting the handling and transportation of the ties; but, as pointed out by the court in a memorandum filed, a recovery of the amounts shown to be the reasonable value of the respective services, upon which these counts are predicated, keeps within the apparent terms of this oral agreement as developed by the testimony. So far as the evidence may be said to be conflicting as to these counts, the findings and judgment of the trial court concludes the matter here.

It will be observed that the recovery on the first count includes compensation to plaintiff for loading the ties which were subsequently lost. The trial court found that plaintiff was entitled to recover for loading these ties for the reason that the evidence warranted the conclusion that the oral agreement between the parties did not purport to constitute an entire contract, but one that was severable as to the loading, transporting, and unloading of these ties. The evidence, we think, suffices to sustain this view. The details thereof need not be stated, since no point is made of this matter on appeal.

II. The real contention on appeal pertains to the recovery on the fifth count of the petition, and to the finding and judgment for plaintiff on defendant's counterclaim. The point is made, however, that the court erred in overruling a motion made by defendant to require plaintiff to make more definite and certain the allegations of its answer to defendant's counterclaim, and also in overruling a motion subsequently made by defendant to strike out the last paragraph of plaintiff's answer to said counterclaim shown above. But by going to trial defendant waived any right to complain of these rulings. See Sundmacher v. Lloyd, 135 Mo. App. 517, 116 S. W. 12.

III. The evidence discloses that plaintiff corporation owned a steamboat and certain barges which it operated for a time on the Osage river, making special towing contracts, and which it later brought...