Rhodes v. Holladay-Klotz Land & Lumber Co.
Decision Date | 01 March 1904 |
Citation | 79 S.W. 1145,105 Mo. App. 279 |
Court | Missouri Court of Appeals |
Parties | RHODES v. HOLLADAY-KLOTZ LAND & LUMBER CO. |
1. In an action for breach of a contract by which defendant agreed to furnish logs to plaintiff's sawmill and dispose of the lumber, defendant alleged that its failure to furnish logs was caused by its inability to sell all the lumber, and that a large amount of lumber was on hand, which was unsalable because of defects in the manufacture, and plaintiff replied that the defects resulted from the fact that the logs furnished by defendant were rotten. Held, that evidence to show this was properly admitted, though the petition did not allege that the logs were unsound.
2. Defendant contracted to furnish logs to plaintiff's sawmill and sell the lumber, agreeing to "log the mill to its capacity, limited only by the amount of lumber" defendant should "be able to sell at satisfactory prices." Held, that defendant could not arbitrarily determine what quality of logs should be supplied, or what prices were satisfactory, but that it was required to supply logs which could be manufactured into salable lumber, and to make reasonable efforts to put the lumber on the market at a price which would yield a reasonable profit.
3. Plaintiff was required to saw the lumber in a workmanlike manner, in dimensions required by defendant.
4. Defendant contracted to furnish logs to plaintiff's sawmill and to sell the lumber, agreeing to "log the mill to its capacity, limited only by the amount of lumber" defendant should "be able to sell." Plaintiff sued, alleging merely a failure to furnish sufficient logs, and defendant answered that the failure to furnish logs was caused by its inability to sell the lumber because of defects in its manufacture. Plaintiff replied that the defects resulted from the fact that the logs furnished were rotten. Held that, under Rev. St. 1899, § 607, providing that the reply shall contain new matter constituting a defense to the new matter set up in the answer, the reply could not add to the petition so as to authorize a recovery if failure to sell the lumber was caused by the furnishing of defective logs.
5. In an action for breach of contract, an instruction to assess plaintiff's damage at such sum as the jury might consider he had sustained was erroneous, because leaving the measure of damage to the speculation of the jury.
6. The measure of damage for breach of a contract to furnish sufficient logs to supply a sawmill was the loss of profits which would have been realized if logs had been supplied according to contract.
Appeal from Circuit Court, Wayne County; Frank R. Dearing, Judge.
Action by Charles M. Rhodes against the Holladay-Klotz Land & Lumber Company. From a judgment for plaintiff, defendant appeals. Reversed.
Green & Raney, for appellant. Smith & Munger, for respondent.
Statement.
The suit is on the following contract and modification thereof:
After stating preliminary matters, the petition is as follows:
After a general denial, except as to matters expressly admitted, the answer is as follows:
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