Runnels v. Lasswell
| Decision Date | 27 March 1920 |
| Docket Number | No. 2566.,2566. |
| Citation | 219 S.W. 980 |
| Parties | RUNNELS v. LASSWELL. |
| Court | Missouri Court of Appeals |
Appeal from Circuit Court, Howell County; E. P. Dorris, Judge.
Action by Moses T. Runnels against Samuel. R. Lasswell. Judgment for plaintiff, and defendant appeals. Affirmed.
J. N. Burroughs, of West Plains, for appellant.
O. F. Wayland, Green & Green, and W. N. Evans, all of West Plains, for respondent.
Plaintiff alleges in his petition that, being the owner of a large body of timber land in Ozark county, he made a contract with defendant, then the owner of a sawmill and equipment, by which the defendant was to cut and saw into lumber, ties, posts, etc., the timber thereon suitable for that purpose and market same. The contract is set out in full, and it will suffice here to say that it provides that, after first paying the cost of cutting, hauling, handling, and marketing the timber and timber products, the plaintiff was to have one half the proceeds of the timber products sold, and the defendant the other half. As we understand, the defendant was not to charge anything for his own time and labor or other supervision of the work, nor for the use of his sawmill and equipment. The defendant was required to prosecute the work "expeditiously and continually" with a sufficient force of men. Time is declared to be of the essence of the contract, and that "all the work is to be completed on or before January 1, 1918." The contract is dated July 29, 1916. This suit was filed June 19, 1918, and alleges that defendant was still in possession of the land, cutting and sawing timber; that he had cut and sawed into timber products about 1,000,000 feet, a large part of which he had sold 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. The plaintiff recovered, and defendant appeals.
The defendant, in addition to a general denial, pleaded res judicata and estoppel. Both these defenses grew out of the fact that on March 24, 1917, this plaintiff brought suit against the defendant for treble damages under section 5448, R. S. 1909, for the timber then alleged to have been wrongfully cut by defendant. That suit resulted in a judgment for defendant, and same is claimed to be res judicata of this suit. In that suit the defendant admitted his entry on the land and the cutting of timber thereon, and justified his action in so doing by the very contract on which plaintiff now sues for an accounting and payment for the timber cut thereunder. There was a dispute, threshed out at the lower trial, as to whether the contract was so fully consummated as to be binding on both parties. It appears that defendant was the aggressor in wanting the privilege of cutting and manufacturing the timber, and plaintiff claimed that he wrongfully moved his sawmill on this land and commenced cutting timber pending negotiations for, but without, an agreement relating thereto. Later, on July 29, 1916, plaintiff drew up and signed the contract sued on and sent same to defendant for approval and signature. The defendant delayed doing this, and not until January 27, 1917, did he notify plaintiff of his acceptance of the contract. Plaintiff lived in Kansas City, and did not know that defendant had been for a long time previous cutting and sawing his timber. This led to plaintiff's bringing suit in March, 1917, for treble damages for trespass. The defendant, as we have stated, denied that he was a trespasser, and that he had no interest in said timber or right to cut same, and set up the contract now sued on as being valid and made in confirmation of a prior verbal understanding, and, continuing, says:
"The defendant says that he has not yet been permitted to complete the work of manufacturing said timber into lumber and ties as by their said contracts plaintiff and this defendant agreed that he should; that he has thus far manufactured only a small portion of the same into...
To continue reading
Request your trial
-
Mo. Finance Corp. v. Roos et al., 21846.
...of this case, in view of Friedman's relation to the corporation and to the other parties, his consent may be inferred. Runnels v. Tarswell, 219 S.W. 980 (Mo. App.); Hartman v. Chicago, Burlington & Quincy Ry. Co., 192 Mo. App. 271; Palmer v. Welch, 171 Mo. App. 580; Davis v. Lea, 293 Mo. 66......
-
Simmons v. Friday
...that a court of equity has no jurisdiction to make such allowances. Brewing Co. v. Miller, 124 Mo. App. 384, 101 S.W. 711; Runnels v. Lasswell, 219 S.W. 980; Welch & Harvey v. Dameron, 47 Mo. App. 221; Farley v. Pettes, 5 Mo. App. 262; Hereford v. Natl. Bk., 53 Mo. 330; State ex inf. v. Con......
-
Missouri Finance Corp. v. Roos
... ... of Friedman's relation to the corporation and to the ... other parties, his consent may be inferred. Runnels v ... Tarswell, 219 S.W. 980 (Mo. App.); Hartman v ... Chicago, Burlington & Quincy Ry. Co., 192 Mo.App. 271; ... Palmer v. Welch, 171 ... ...
-
Simmons v. Friday
...that a court of equity has no jurisdiction to make such allowances. Brewing Co. v. Miller, 124 Mo.App. 384, 101 S.W. 711; Runnels v. Lasswell, 219 S.W. 980; Welch & Harvey v. Dameron, 47 Mo.App. 221; Farley Pettes, 5 Mo.App. 262; Hereford v. Natl. Bk., 53 Mo. 330; State ex inf. v. Consolida......