Runnels v. Lasswell

• Decision Date: 13 May 1925
• Docket Number: No. 3492.,3492.
• Citation: 272 S.W. 1032
• Parties: RUNNELS v. LASSWELL et al.
• Court: Missouri Court of Appeals

272 S.W. 1032

RUNNELS v. LASSWELL et al.

No. 3492.

Springfield Court of Appeals. Missouri.

May 13, 1925.

Appeal from Circuit Court, Greene County; Grin Patterson, Judge.

Action by Moses T. Runnels against Samuel R. Lasswell and others. Judgment for defendants, and plaintiff appeals. Reversed and remanded for new trial.

Barbour & McDavid, of Springfield, O. F. Wayland, of West Plains, and Ernest C. Martin, of Kansas City, for appellant.

J. N. Burroughs, of West Plains, and O. T. Hamlin, of Springfield, for respondents.

BRADLEY, J.

This is a suit on a bond. The finding, by direction of the court at the close of plaintiff's case, was for defendants, and plaintiff appealed.

Plaintiff and defendant Samuel R. Lasswell entered into a contract dated July 29, 1916, whereby Lasswell, who had two sawmills in Howell county, agreed to move his mills upon the lands of plaintiff in Ozark county, and cut lumber, ties, posts, and cordwood from timber thereon, and was to pay all expenses from the proceeds of sales, and the remainder was to be divided equally between the parties. Lasswell, who is designated in the contract as the party of the second part, was "to report fully everything pertaining to the business" each month, and to make monthly settlements with plaintiff; and was to have tho lands, which consisted of several hundred acres of timber lands, surveyed, and expense of the survey was also to be paid from the proceeds of sales of lumber, ties, etc. The contract further proformer vided that "time is the essence of this connot tract, and all of this work is to be completed on or before January 1, 1918." The contract also provided that Lasswell should give to plaintiff "an indemnifying bond of $5,000 for the faithful performance of each and every agreement in this contract." The bond mentioned was given with defendant Samuel R. Lasswell as principal and defendants William L. Lasswell and J. N. Burroughs as sureties. Hereinafter, when we use the term defendant, we have reference to defendant Samuel R. Lasswell, unless otherwise stated.

In the petition the contract and bond are set out. Plaintiff alleges that the contract was breached in three particulars, to wit: (1) That defendant cut and left on the ground and in the woods 500,000 feet of logs, to plaintiff's damage in the sum of $225; (2) that defendant failed to have the lands surveyed, which failure caused plaintiff to be damaged in the sum of $150; (3) that defendant failed to cut and market all the timber on said lands according to the terms of the contract, which failure damaged plaintiff in the sum of $20,000. The prayer was for $5,000, the amount named in the bond.

Defendants William L. Lasswell and Burroughs in their separate answer admitted the execution of the contract and bond as pleaded, but denied any breach. Defendant Samuel R. Lasswell in a separate answer admitted the execution of the contract and bond as pleaded, and also denied a breach. This defendant, answering, further pleaded res adjudicata, facts in the nature of estoppel, and a counterclaim. The substance of the plea of res adjudicata is: That on April 5, 1919, in a cause in the circuit court of Howell county between plaintiff and defendant, plaintiff recovered a judgment against defendant for the sum of $2,011.10, and that said judgment was paid; that all the alleged grounds for recovery in the cause at bar were adjudicated in the prior cause. This prior case is referred to in the present record as the accounting suit, and will be more fully explained infra.

On the defense of estoppel defendant says that plaintiff brought harassing and annoying suits against him, and again mentions the accounting suit, and another suit wherein plaintiff proceeded against defendant to recover treble damages under the trespass statute, that writs of injunction were procured, and that plaintiff's conduct prevented defendant from fulfilling said contract "and from reaping the benefits thereof to himself."

The counterclaim is based on the contention that there was left on the lands merchantable timber which defendant could have and would have cut and marketed under his contract had it not been for the alleged unwarranted interference by plaintiff, and that because of his failure to market said timber defendant says he was damaged in the sum of $20,000.

In a reply plaintiff put in issue the new matter, and also pleads res adjudicate against the counterclaim. The plea of res adjudicate in the reply is based upon the accounting suit and what is called the trespass suit. The trespass suit is mentioned in the record as the Hickory County Case, but for convenience we will hereinafter refer to this case as the trespass suit, and when reference is made to the count in ejectment in said trespass suit it will be so stated. A brief explanation or statement as to this cause may not be inappropriate here. Plaintiff and defendant, it seems, prior to July 29, 1916, agreed upon the contract whereby defendant would move his mills onto plaintiff's lands, etc., or had talked contract prior to July 29, 1916, but the contract was not reduced to writing. Defendant, however, proceeded to enter upon the lands with his mills, and began operations. Plaintiff resided in Kansas City, Mo., and defendant in West Plains, Mo. Plaintiff prepared and signed the contract, and mailed it to defendant about the time of its date, July 29, 1916, but defendant did not sign promptly. August 13, 1916, defendant wrote plaintiff, acknowledging receipt of the contract, and said that he thought "a few slight changes" were necessary in order to express "our agreement." Defendant also said in the letter that he was afraid that the contract did not give him sufficient time, and, "if you are going to be down anyways soon, I will wait until you come, and we can then fix it up, or, if you wish, I will have one drawn as I think it should be, and then submit it to you for your approval." Matters thus rested, and defendant continued his operations on the lands. Early in 1917 plaintiff filed in Ozark county the trespass suit, and included therein a count in ejectment to recover possession of his lands which `defendant was holding on the theory that his contract was effective. That cause went to Hickory county on change of venue. January 27, 1917, defendant signed the contract sent to him in July, 1916, and at the same time executed the bond sued on, and mailed the bond to plaintiff, but retained the contract. In the answer to the ejectment count in the trespass suit defendant pleaded his contract, and in a counterclaim claimed damages because of alleged unwarranted interference on the part of plaintiff. The trespass case was tried in the circuit court of Hickory county at the November term, 1917, resulting in a finding against plaintiff both on the count in trespass and in ejectment. So far as appears no finding was made on the counterclaim there pleaded.

Many assignments in the cause at bar are made, but we do not deem it necessary to consider them all. Plaintiff contends that defendant's alleged counterclaim is barred by the judgment in the trespass suit, and also by the judgment in the accounting suit. Most stress, however, in the briefs is given to the judgment in the accounting suit. Defendant, as stated, also relies upon a plea of res adjudieata, and says that the proceedings in the accounting suit bar plaintiff in the cause at bar.

The record in the cause at bar does not so show, but defendants state in their brief that, when the court gave the peremptory direction to find for defendants on plaintiff's alleged cause of action, thereupon the counterclaim was dismissed. But notwithstanding such dismissal we will rule on the plea of res adjudicate which is urged as a bar against defendant's alleged counterclaim; and this because we have reached the conclusion that the cause must be remanded for a new trial, and defendant may desire to refile his counterclaim. We will first determine the plea of res adjudicate as to plaintiff's case. The accounting suit was before us in Runnels v. Lasswell (Mo. App.) 219 S. W. 980. That case was in equity for an accounting, and was based upon an alleged breach of the same contract as is involved in the cause at bar. In the statement in Runnels v. Lasswell, supra, is the following language:

"This suit was filed June 19, 1918, and alleges that defendant was still in the possession of the land, cutting and sawing timber; that he had cut and sawed into timber products about 1,000,000 feet, * * * of the value of many thousands of dollars, all of which defendant has kept and used himself; that he has failed and refused to render monthly statements as required by the contract, and has in fact never given plaintiff any statement of the amount and kind of timber products manufactured or sold by him; that defendant has retained and refused to account for the lumber sold, but has converted same to his own use. Plaintiff prayed for an accounting and for judgment for the amount due him."

In the accounting suit defendant, who is the same defendant at bar, answered by the general denial, a plea of res adjudicate, and estoppel. The pleas of res adjudicate and estoppel were both based on the trespass case. We held in the accounting case that the judgment in the trespass case was not a bar. The accounting case was based on a failure of defendant to report or account to plaintiff as the contract required. The present cause is on the bond. A breach of the contract was a breach of the bond. Plaintiff alleges in the cause at bar three breaches of the contract as stated supra. Defendant contends that all of these alleged breaches were involved in the accounting suit, and were there adjudicated. If this be true, then plaintiff has had his day in court, and can be heard no more on the same complaint. In the accounting suit plaintiff in his petition set out the contract in haec verba. He asked for an accounting and general relief. The...