Phillips v. Todd

• Decision Date: 10 December 1915
• Docket Number: No. 1520.,1520.
• Citation: 180 S.W. 1039
• Parties: PHILLIPS v. TODD.
• Court: Missouri Court of Appeals

180 S.W. 1039

PHILLIPS v. TODD.

No. 1520.

Springfield Court of Appeals, Missouri.

December 10, 1915.

Appeal from Circuit Court, Taney County; Jno. T. Moore, Judge.

Action by L. S. Phillips against Vernon C. Todd. From a judgment for plaintiff, defendant appeals. Reversed and remanded.

The plaintiff sues defendant for breach of contract relating to cutting and sawing into lumber the timber on certain lanes described in the petition. Plaintiff recovered in a jury trial a judgment for $2,150, and defendant appeals.

The record discloses that defendant, having a contract under which he had the right to cut and saw into lumber all the timber suitable for that purpose on a large tract of land, entered into a contract with plaintiff, a sawmill man, to have him cut and saw such timber into lumber. This contract requires diligent and continuous work by plaintiff in operating his sawmill, and provides that he shall cut an aggregate of not less than 1,200,000 feet of timber, log scale, per year, and at an average of 100,000 feet per month, as nearly as possible, to do so until all merchantable timber is removed. This requirement was important to defendant, as he had only three years within which to cut and remove the timber. Other clauses of the contract which relate more particularly to the alleged breaches of the contract by defendant are these:

All pine trees cut by said first party shall be accurately counted and measured each day by a competent timber estimator, who shall enter in a record book the number of trees cut each day and the measurement of same. Tie first party shall make a weekly report of what said logs saw out, amount of same, and grades manufactured.

Party of the first part agrees to cut, haul, saw, and deliver on cars at Pine Top Spur, at the following prices: $8.50 per 1,000 feet based on one inch thickness for all lumber stacked on the yard at mill; an additional charge of 50 cents per thousand is agreed on for stacking.

Said second party agrees to pay the 15th and 30th of each month for all lumber for the preceding two weeks, said first party to furnish itemized pay roll showing amount due for cutting, hauling, logging, sawing, stacking, labor, etc., up to that time, amount due each employe and on the last of each month to make settlement with second party.

If either party to this agreement fails at any time to fulfill his obligations thereunder and shall continue such default for a period of 30 days after due notice in writing setting forth the nature of the failure or default, the other party shall have the right to declare the interest hereunder of the party in default to have been forfeited, and this agreement shall thereafter be null and void.

The petition alleges this contract and then states that plaintiff mortgaged his sawmill and machinery to defendant to secure notes for $844.86, payable on demand, but that it was agreed and understood that such notes should be paid out of plaintiff's compensation for sawing such timber. Plaintiff further alleges his compliance with the contract in cutting a large amount of timber, to wit: 1,384,238 feet, of which 770,664 feet was delivered at the railroad for shipment and the balance of 477,574 remains stacked on the yards. (We note a discrepancy in these figures.) The contract above mentioned is dated June 1, 1912, and provides for the commencement of work thereunder on that date. The breaches of the contract alleged by plaintiff are that defendant in May, 1913, with intent to defraud this plaintiff out of his property and the proceeds of said contract, refused to let plaintiff cut more than 50,000 feet of lumber per month; that in January, 1914, he shut down the plaintiff's mill and refused to let the plaintiff cut any more timber and stopped plaintiff from hauling the logs and from using his teams and wagons about the mill; and in order to prevent plaintiff fulfilling his contract, defendant fraudulently took possession of his sawmill, claiming to do so under his mortgage, and refused to let plaintiff cut, saw, log, or haul more timber, and refused to let plaintiff deliver the lumber then stacked on the yard.

The answer admits the making of this contract and the mortgage mentioned, and denies any breach of the contract. It then alleges that plaintiff's sawmill and machinery was, before the making of the contract, heavily mortgage while located in Arkansas, which fact plaintiff concealed from defendant ; that defendant made advances to plaintiff and guaranteed his bills in purchasing new machinery, to secure which plaintiff gave him the chattel mortgage mentioned; that plaintiff failed to cut the amount of timber required by his contract, both by the month and by the year, and breached same from the beginning.

The evidence shows that plaintiff did not get started to sawing under the contract until near the last of June, 1912, and only sawed about 20,000 feet that month. In July and August he sawed less than half the specified amount. During the next eight months, or until May, 1913 (when he claims defendant compelled him to reduce his output), after taking into consideration a considerable amount of lumber sawed at defendant's request from timber on other lands than mentioned in the contract, but owned and controlled by defendant, we find that plaintiff sawed substantially the average of 100,000 feet per month. Thereafter till January, 1914, the output of the mill averaged less than 50,000 feet per month. In January, 1914, the mill was practically shut down, though small amounts of timber were sawed In March, April, May, and June of that year.

C. B. Sharp, of Forsyth, and Watson & Page, of Springfield, for appellant. Wright Bros., of Springfield, and D. F. McConkey, of Forsyth, for respondent.

STURGIS, J. (after stating the facts as above).

The defendant's principal contention is that plaintiff cannot recover because of the uncontroverted fact that he had not, prior to defendant's alleged breach, himself complied with his contract to saw an average of 100,000 feet per month. The principle is invoked that to recover on a contract a party must show a compliance with same by himself, and cites Kreitz v. Egelhoff, 231 Mo. 694, 132 S. W. 1124; Iola Cement Co. v. Ullmann, 159 Mo. App. 235, 140 S. W. 620; McCrary v. Thompson, 123 Mo. App. 596, 100 S. W. 535. These and like cases go no further than to hold that, where the contract contains a provision the performance of which is a condition precedent to any recovery, and there is no waiver thereof, or where the performance by plaintiff of his part of the contract furnishes the only basis of his right to recover, then such performance must be shown. Such, however, is not this case. Plaintiff is not suing to enforce performance of this contract by defendant, but for damages for its breach. It will not do to say that defendant's breach of a contract can always be justified by proof of some prior breach by plaintiff. It is a sufficient answer to defendant's contention in the present case to say that the evidence justified a finding that defendant was perfectly satisfied with the amount of lumber plaintiff was sawing from month to month. He made no complaint to the contrary. It certainly needs no citation of authorities to show that if defendant made no objection to the amount of lumber being sawed and delivered from month to month, but accepted the same from time to time as satisfactory, and permitted plaintiff to go on with his work notwithstanding the shortage of any month under the belief that no advantage would be taken of his failure to saw the full amount, then defendant, desiring to terminate the contract and stop the sawing altogether, cannot be allowed to hark back and take advantage of any such past delinquencies of the plaintiff. The evidence in this case tends strongly to show that plaintiff got out every order for lumber given to him by defendant, and that defendant was never seriously dissatisfied with the smallness of the amount sawed, but on the contrary, the first serious objection was that plaintiff was sawing too much.

The instructions given for defe...