Phillips v. Barnes

• Decision Date: 01 March 1904
• Parties: PHILLIPS v. BARNES.
• Court: Missouri Court of Appeals

80 S.W. 43

105 Mo. App. 421

PHILLIPS v. BARNES.

St. Louis Court of Appeals. Missouri.

March 1, 1904.

PLEADING — DEPARTURE — OBJECTION — HOW MADE — WAIVER — ADMISSION OF PAYMENT — — CONTRACT — CONSTRUCTION — AMBIGUITY —PAROL EVIDENCE.

1. Objection that an amended petition departs from the cause of action stated in the petition, and states a new cause of action, is waived by defendant pleading to it and going to trial.

2. Objection that an amended petition states a new cause of action should be made by motion to strike out, not by objection to reception of evidence.

3. Plaintiff sued on an oral contract of sale of timber. The answer set up a written contract, and pleaded payment. The replication admitted the contract of the answer, but denied payment. Held, that any departure was waived, objection not having been made below.

4. The petition for the purchase price alleged an oral contract for sale of timber. The answer alleged the sale was by a written contract, which it set up; reciting that it was to certify that plaintiff had sold the timber on certain land to defendant, and had given "this my lease to said lands for the term of seven years," and concluded, "I have received in full consideration of the above lease the sum of $325." Held, that the replication, reciting, "Plaintiff * * * admits each and every fact set up in the answer, except that the timber has been paid for, which he expressly denies," did not admit payment for the timber.

5. An instrument recited, "This is to certify that I have this day sold * * * all the timber that is on the lands herein described and give this my lease to said lands for the term of seven years," and concluded, "I have received in full consideration of the above lease the sum of $325." Held that, even if it could be construed that the consideration was for the timber as well as the lease, it was so ambiguous that parol evidence was admissible that the consideration was only for the lease.

Appeal from Circuit Court, New Madrid County; H. C. Riley, Judge.

Action by Amos R. Phillips against Seth S. Barnes. Judgment for plaintiff. Defendant appeals. Affirmed.

E. F. Sharp, L. W. Fisher, and Robt. Rutledge, for appellant. J. V. Conran, for respondent.

GOODE, J.

Plaintiff sued for the price of timber on 320 acres of land in New Madrid county. His petition stated that on February 5, 1898, he and the defendant entered into a verbal contract for the sale by him and the purchase by the defendant of the timber on certain tracts, containing a stated number of acres, the purchase price being $1,000; that the defendant cut and removed the timber, and converted it to his own use, but refused to pay for it; that the plaintiff had complied with his contract of sale, and the defendant ought, in equity and good conscience, to pay the agreed price. The petition was crudely drawn, departed from the cause of action stated in two petitions previously filed, and substituted a new cause of action; but the judgment should not be reversed on that account, as the objection was waived by the defendant pleading to the last petition and going to trial. Liese v. Meyer, 143 Mo. 547, 45 S. W. 282; Bernard, Adm'r, v. Mott, 89 Mo. App. 403. It is true, an objection was made to the reception of any evidence on the score that the last petition stated a new cause of action, but the proper way to preserve the objection was to stand on a motion to strike out the petition. Previous citations; Scoville v. Glasner, 79 Mo. 449. The objection to the evidence was rightly overruled, for that an amended petition states a new cause of action is no basis for such an objection, which raises the question of whether a case is stated at all.

The answer denied that the contract for the sale of the timber was verbal, and set up a written instrument dated February 7, 1898, and signed by the plaintiff, as constituting an earlier contract for the sale of the timber than the one finally executed. Said instrument described more than 1,000 acres of land, and recited that plaintiff agreed to sell the timber right on it to several persons —among them, the defendant—for a first mortgage bond of $1,000, to be issued by a railroad company that intended to build a railroad in New Madrid county. The instrument gave the vendees seven years after the expected railroad was open for business to remove the timber. The answer further stated that an examination of the plaintiff's title to said 1,000 acres of land disclosed that he owned only a part of it, and in consequence said earlier contract was rescinded by mutual consent, and afterwards, on January 13, 1899, another instrument was executed by the plaintiff, selling the timber on all the land which he owned to the defendant; the last contract being in abrogation of the one of February 7, 1898. The document of January 13, 1899, was copied in the answer, and is of the following tenor:

"New Madrid, Missouri, Jan. 13, 1899.

"To whom it may concern: This is to certify that I have this day sold to S. S. Barnes, his administrators, heirs or assigns, all the timber that is on the lands herein described and give this my lease to said lands for the term of seven years from this date; that is to say:

"The southeast quarter of section 10, 160 acres, and the south half of southeast quarter, and southeast quarter of southwest quarter, section 11, 120 acres, and the southeast quarter of...