Phillips v. Thompson

• Decision Date: 16 February 1931
• Parties: J. W. PHILLIPS, RESPONDENT, v. MILTON THOMPSON, APPELLANT
• Court: Kansas Court of Appeals

35 S.W.2d 382

225 Mo.App. 859

J. W. PHILLIPS, RESPONDENT, v. MILTON THOMPSON, APPELLANT

Court of Appeals of Missouri, Kansas City

February 16, 1931

Appeal from Circuit Court of Jackson County.--Hon. Willard P. Hall Judge.

REVERSED AND REMANDED.

Judgment reversed and remanded.

Burns Strader for respondent.

J Allen Prewitt for appellant.

BOYER C. Campbell, C., concurs. Trimble, P. J., absent.

OPINION

BOYER, C.

This is an action to recover the hire of a rock crusher. Plaintiff had judgment for $ 325. Defendant duly appealed and claims, among other alleged errors, that plaintiff recovered upon a theory and cause of action other than that stated in the petition; that the case was improperly submitted upon instructions given; that defendant's instructions were erroneously refused; and that the court erred in admitting incompetent evidence.

For a proper understanding of the case and of some of the questions raised we deem it advisable to set forth the petition, the substance of the answer, and the main instructions submitting the case to the jury. The petition is as follows:

"Plaintiff states that at all times hereinafter mentioned he was and now is the owner of a certain rock crusher, which the plaintiff was accustomed to hire to persons desiring the use thereof at a monthly rental of fifty dollars per month; that on the 13th day of November, 1926, the defendant hired and employed said rock crushed for use upon his premises and from that date forward to the 21st day of July, 1927, or a period of seven and one-half months, retained and used said rock crusher, returning the same to the plaintiff on or about the date last above set forth.

"Plaintiff further states that at the time said rock crusher was hired by the defendant he was informed by the plaintiff that the price and rate for the use thereof was fifty dollars per month, and that he would be charged said amount for its use during the period the same was in defendant's possession.

"Plaintiff further states that the rate of fifty dollars per month for the use and rental of said machine was a fair and reasonable rate and charge, that by reason of the premises plaintiff became entitled to receive from defendant as rental for the period above mentioned the total sum of three hundred and seventy-five dollars, payment whereof was by plaintiff duly demanded of defendant, but that the defendant has failed and refused to pay the same.

"Wherefore, plaintiff prays judgment against defendant for the said sum of three hundred and seventy-five dollars and for his costs."

The answer was a general denial, and defendant further answered that on or about November 13, 1926, he did hire or rent from plaintiff a rock crusher and engine and agreed to pay for the use and rent thereof the sum of $ 5 per day for the time said rock crusher and engine were actually used by defendant, and that plaintiff agreed to accept said sum as pay therefor; that plaintiff warranted said engine to be in good repair and amply sufficient to operate said crusher; that the crusher and engine were delivered to defendant; that the engine was out of repair and wholly unfit for use in the operation of said crusher, and that defendant was compelled to and did use his own engine in operating it to his damage in the sum of $ 50, and that said sum is the reasonable amount to which defendant is entitled under said contract by reason of plaintiff's failure to repair said engine; that defendant actually used said crusher for a period of sixteen and one-half days; that he then offered to return it, but plaintiff informed him to retain it until it was called for; that the crusher was later returned to plaintiff and defendant tendered the full amount for the use of same which plaintiff declined; that thereafter the amount of rent being in dispute, defendant tendered plaintiff $ 100 before suit, and after suit defendant again tendered to plaintiff the sum of $ 100 with all costs which was declined; and the answer further states:

"That said defendant hereby in open court tenders to said plaintiff and pays in currency to the clerk of this court for plaintiff's benefit the said sum of $ 100 in full settlement of plaintiff's said claim. Defendant further states that the actual sum due said plaintiff under the terms of the contract aforesaid between plaintiff and defendant is $ 82.50 less the sum of $ 50 which is a just and reasonable amount to which defendant is entitled as damages aforesaid."

The reply was a general denial.

Immediately preceding the trial the record shows the following:

"Now defendant by leave of court makes tender in open court of $ 160 and costs of $ 20, making total of $ 180."

The case proceeded to trial and resulted in a verdict for plaintiff in the sum of $ 325.

There is evidence of the following facts: About November 13, 1926, plaintiff was the owner of a rock crusher. Defendant was the owner of a large tract of land upon which he desired to use a rock crusher; he wished to buy or rent one for that purpose and instructed his foreman to either buy or hire a rock crusher from plaintiff; that about the date named, defendant's foreman obtained from plaintiff a rock crusher together with an engine which were retained in defendant's possession until about the 21st day of June, 1927, when they were returned to the plaintiff. Defendant's foreman attempted to buy the crusher but he and plaintiff could not agree upon the price, but the foreman took the crusher and engine with the understanding that defendant would buy it or pay rent. The controverted facts in evidence arise over the terms of hiring. Plaintiff's evidence tends to show that he stated to defendant's foreman that the rent would be $ 50 per month, "to start when he got it and stop when he returned it." The name of defendant's foreman was Duncan. Plaintiff testified in reference to the conversation about the rental of the crusher in these words: "He did not mention the engine. He mentioned the crusher. He asked me if I still owned the crusher and I told him I did and he said: 'Mr. Thompson will buy that crusher from you.' I said I had talked to Mr. Thompson several times about it and he always wanted to trade second handed mules, and I said: 'I will sell it to Mr. Thompson if he wants to buy it.' 'Well' he said. 'I will hire the crusher then. I think Mr. Thompson will buy it if you get it there on the place.' and I said: 'I would rather rent it than to sell it but then either way. It is for sale and I priced it to Mr. Thompson and if he rents the crusher--if he buys it later the rental price will apply on the price of the crusher whatever time he has it.'" Plaintiff offered to sell the crusher for $ 500 and later offered to accept $ 400 from defendant and defendant keep the crusher. The crusher was an old one and had been in use some twelve or thirteen years.

Plaintiff further testified that when Mr. Duncan asked for the crusher he said that Mr. Thompson would buy it: that he had a conversation with defendant in January, and later in March, when the reduction in purchase price was made. Plaintiff never demanded payment of any rent until shortly before suit. He said: "I had no right until I found out he wasn't going to buy it." That Mr. Thompson said in January: "I will either buy it or pay you rent on it." Plaintiff further testified in answer to a question whether anything at all was said about $ 50 per month: "I told Mr. Duncan that was the price I would charge for the crusher. Mr. Duncan didn't say a word one way or other." This was at the time he actually rented it, and "he never did mention a price that he wanted to make." "That was the price I made Mr. Duncan, $ 50 a month as long as he used it. That is the only price I have made or mentioned. This is the only price ever made. Mr. Duncan never said a word about the price. He said he would pay for it if he didn't buy it and I told him I would rather rent it than to sell it." There is no evidence that defendant or his foreman at any time agreed to pay $ 50 a month rental for the time the machine was in possession of defendant.

The evidence shows that defendant actually used the crusher only sixteen and one-half days, although it remained in his possession from November 13, 1926, to June 21, 1927. The evidence also shows that the engine which was delivered to defendant together with the crusher was not used by defendant because it was insufficient in power and working condition to operate the crusher, and defendant used his own engine for power while the crusher was in use. The testimony of defendant's foreman was that he hired the crusher and engine for $ 5 a day for the time it was...