Osborne v. Eyster

• Citation: 192 S.W. 143,195 Mo. App. 520
• Decision Date: 14 February 1917
• Docket Number: No. 1821.,1821.
• Parties: OSBORNE v. EYSTER et al.
• Court: Court of Appeal of Missouri (US)

192 S.W. 143

195 Mo. App. 520

OSBORNE v. EYSTER et al.

No. 1821.

Springfield Court of Appeals. Missouri.

February 14, 1917.

Appeal from Circuit Court, Jasper County, Division No. 1; Joseph D. Perkins, Judge.

Action by T. B. Osborne against W. C. Eyster and others. From a judgment for plaintiff, defendants appeal. Judgment affirmed.

Owen & Davis, of Joplin, for appellants. Walden & Andrews, of Joplin, for respondent.

FARRINGTON, J.

Plaintiff recovered a judgment against the defendants for the sum of $788.58, which was the full amount sued for with interest. The petition avers that plaintiff operated a custom mill, and that he entered into an agreement with defendants to clean certain ore-bearing dirt and rock belonging to the defendants, who owned and were operating a mine. The price to be paid for milling was $1.10 per ton of dirt milled — 40 cents for hauling and 70 cents for cleaning. The amount claimed in the petition to have been milled was 712 tons and 400 pounds, for which milling it is alleged defendants refused to pay. Defendants answered by a general denial, and, by way of counterclaim, set up that plaintiff in cleaning said ore failed to extract the same properly and permitted large quantities, to wit, 15 tons of actual ore of the value of $1,425, to be wasted by allowing it to go into the tailing pile, sludge pond, and waste places, and asked judgment for $1,425. The verdict of the jury was for plaintiff on his claim against the defendants, and also in plaintiff's favor on defendants' counterclaim. Defendants have appealed, assigning error in the exclusion of certain evidence, and in the giving and refusal of instructions.

The objections urged to instructions are trivial, and appellants cite no authority in support of their attack. We are convinced there is no reversible error in the record so far as the instructions are concerned.

The exclusion of evidence offered by appellants is relied on to secure a reversal in this case, and, in order to see the full force of this contention, it is deemed proper to summarize the evidence produced by both parties at the trial.

The controverted point of fact is well shown by quoting defendants' instruction No. 4 which was given by the court:

"The court instructs the jury that if they believe from the evidence in the case that the defendants employed the plaintiff to, and that the plaintiff undertook for hire, mill and clear for market for the defendants the ore-bearing dirt described in the evidence, and that the plaintiff in milling and cleaning and preparing for market the ore in said dirt unnecessarily suffered and permitted quantities thereof to be wasted and to go into the tailing pile, sludge pond, and other waste places, and that the same was thereby by reason thereof lost to the defendants, then the jury will find the issues for the defendants on their counterclaim, and will assess their damages at such sum as will reasonably compensate them for the loss, if any, of such mineral."

The jury found the facts made an issue in this instruction against the defendants, and there is no doubt that there was substantial evidence introduced on the part of both plaintiff and defendants to have upheld a verdict for either under this instruction.

Plaintiff's evidence shows that he agreed to mill the defendants' dirt for the price named in the petition, and that his mill was as good or better than the average custom mill for the recovery of ore; that the 712 tons and 400 pounds charged for was not actually weighed, but that this weight was arrived at by agreement by weighing one load out of every seven or eight and taking that as an average on which to base the weight of all; that the dirt furnished by defendants was thin ore-bearing dirt, and that plaintiff called defendants' attention to this fact and advised them to stop having it milled on that account; that it is impossible to catch all the mineral in milling it, and that tailing piles are often worked over as many as three times; that the recovery made by the plaintiff on this dirt was as good as could be made; that Cook, one of the defendants, was at the mill a greater part of the time this dirt was being milled, and that he made no complaint; that, finally, the recovery running so low, the defendants asked if they could send a jigman over to the mill to represent them, which was agreed to; that one Wyckoff, a jigman, came to the mill and stayed there several hours; that Cook told plaintiff afterward that Wyckoff told him that it was all right. Plaintiff's evidence was to the effect that the mill was run as it should have been; that on one occasion, which will often happen, spouts or pipes did become filled and some of the ore did run over. His evidence further shows that dirt of this character varies in the amount of recovery, often from day to day.

Defendants' evidence tended to show that they complained of the low recovery they were getting, and had a jigman, Wyckoff, go to the mill, who discovered ore wasting and being lost at...