Seymour v. Tobin Quarries, Inc.

• Decision Date: 09 January 1939
• Docket Number: No. 19339.,19339.
• Citation: 123 S.W.2d 628
• Parties: NANCY DAVIS SEYMOUR, APPELLANT, v. TOBIN QUARRIES, INC., RESPONDENT.
• Court: Missouri Court of Appeals

123 S.W.2d 628

NANCY DAVIS SEYMOUR, APPELLANT, v. TOBIN QUARRIES, INC., RESPONDENT.

No. 19339.

Kansas City Court of Appeals. Missouri.

January 9, 1939.

Appeal from Andrew Circuit Court. — Hon. R.B. Bridgeman, Judge.

AFFIRMED.

G.C. Sparks, R.E. Culver and Petree & Wright for appellant.

(1) The verdict is responsive to the evidence and the law under the evidence. The case alleged in the petition was proven by substantial, uncontradicted testimony. The presumption that the trial court sustained the motion for new trial on the ground that the verdict was against the evidence, against the weight of the evidence, and against the law under the evidence, does not obtain in this case. Castorina v. Hermann, 104 S.W. (2d), l.c. 300-1; Section 4559, Mo. Ann. St., page 2005; State v. Southern Securities Co., 60 S.W. (2d) 632-4; Buehler v. Baum, 71 S.W. (2d) 851-6; Bush v. Railroad, 164 Mo. App. 420, 426-7. (2) The trial court did not admit any incompetent, immaterial or irrelevant evidence on the part of plaintiff, and defendant's allegation in the motion for new trial is vague and indefinite and did not furnish ground for granting a new trial. Bartner v. Darst, 285 S.W. 449. (3) Complaint upon motion for new trial that court excluded competent, relevant and material testimony is not sufficiently definite to furnish ground for review. Bartner v. Darst, 285 S.W. 449. (4) The Court did not err in overruling defendant's Instruction No. 1 in the nature of a demurrer to the evidence of plaintiff. Young v. Levine, 31 S.W. (2d) 978; Took v. Wells, 53 S.W. (2d) 389, 331 Mo. 249; Smith v. Fordyce, 88 S.W. 679, 190 Mo. 1; Liebaart v. Hoehle's Est., 111 S.W. (2d) 925; LaFont v. Richardson, 119 S.W. (2d) 25. (5) The Court did not err in refusing defendant's Instructions Nos. 2, 3, 4 and 5 in the nature of demurrers to plaintiff's case. Parker-Washington Co. v. Dennison, 155 S.W. 797, 249 Mo. 449; Cathey v. Railroad, 130 S.W. 130, 149 Mo. App. 134; Bacon Piano Co. v. Wilson, 62 S.W. (2d) 774; Rosenbaum v. Gilliam, 101 Mo. App. 126; 13 C.J. 311; Green v. Higham, 161 Mo. 333; 13 C.J. 783, sec. 994; Kansas City ex rel. v. Davidson et al., 88 S.W. 791, 154 Mo. App. 269. (6) The Court did not err in giving Instructions A, B, C, D, E, and F at the request of plaintiff. 17 C.J. 852, sec. 169; Kahn v. Schoen Silk Corp., 147 Mo. 516, 44 A.L.R. 285; Haysler v. Owen, 61 Mo. 270; Simmons v. Wittman, 88 S.W. 791, 113 Mo. App. 357; Kansas City ex rel. v. Davidson et al., 133 S.W. 365, 154 Mo. App. 269. (7) The fact that no instruction was requested by plaintiff submitting the question of agency of Mr. Lynch and his authority to contract on behalf of defendant was not error. The Court is not required in civil cases to instruct on all questions, whether requested or not. Mere non-direction is not error. Dingham v. St. Louis Pub. Service Co., 52 S.W. (2d) 584-586; Pavlo v. Forum Lunch, 19 S.W. (2d) 510. (8) Instruction No. A is not erroneous. Plaintiff's case was not submitted on the theory of Agency. Buffalo Trust Co. v. Producers' Exchange, 224 Mo. App. 199, 23 S.W. (2d) 644. (9) The verbal contract made by plaintiff was proven by the evidence to be valid and binding on defendant. Sec. 4559, Mo. Ann. St., page 2005; Shelby v. Conn. Fire Ins. Co., 262 S.W. 686, 218 Mo. App. 84; State ex rel. v. Stoutt, 253 S.W. 43, 215 Mo. App. 361-3. (10) The evidence showed that Lynch was superintendent of the defendant company in charge over all the negotiations and operations relative to the Seymour quarry. He was the "alter ego" and any agreements made by him relative to the conduct of the business of the defendant over which he had charge was as binding on the concern as if made by the president himself. State ex rel. v. Stoutt, 215 Mo. App. 361; Rosenbaum v. Gilliam, 74 S.W. 507, 101 Mo. App. 126. (11) There was a valid consideration for the verbal contract alleged in plaintiff's petition and proven by the evidence. There was a benefit to defendant, to-wit, it acquired in return for its promise, a legal right to which it would not otherwise be entitled. 13 C.J. 311; Green v. Higham, 161 Mo. 333; 13 C.J. 783, sec. 994. (12) The Instruction No. 5 asked by defendant was properly refused by the Court, as it fixed an improper rule for the damages suffered. Instruction No. B, given on the part of plaintiff announced the correct rule for measuring the damages. The measure of damages in case of a breach of contract is the amount which will compensate the injured person for the loss which a fulfilment of the contract would have prevented. The damage is what it will cost to complete the contract. 17 C.J., 882, sec. 187; Kansas City v. Davidson, 154 Mo. App. 269, 133 S.W. 365. (13) The damages assessed by the jury in the sum of $800 are not excessive. The proof introduced, and not disputed, was that it would take a larger sum to complete the contract. (14) Plaintiff's petition stated a cause of action against defendant, and was sustained by proof, therefore plaintiff under the law and the evidence was entitled to the verdict rendered.

Ed. Kelso, D.D. Cross and DuBois & Miller for respondent.

(1) This Court will assume that motion for new trial was granted, and it should be sustained on any ground contained in the motion. This includes sustaining the motion on the ground that the verdict is against the evidence, although no evidence was offered by defendant. Vitagraph v. Cantwell, 60 S.W. (2d) 683; Darnell v. Lyons, 51 S.W. (2d) 159; National Corporation v. Roberts, 80 S.W. (2d) 243; Farmers State Bank v. Miller, 300 S.W. 833, l.c. 838; McWilliams v. Railroad, 172 Mo. App. 318, l.c. 328; Birdsong v. Jones, 30 S.W. (2d) 1094, l.c. 1097; Castorina v. Herrmann, 104 S.W. (2d) 297, l.c. 300; Riche v. City of St. Joseph, 32 S.W. 578, l.c. 579. (3) Defendant's motion for new trial is sufficiently definite to present the questions involved, and care of Bartner v. Darst, 285 S.W. 449, relied on by plaintiff, holding contrary, has been expressly overruled. Chawkley v. Wabash Co., 297 S.W. 20, l.c. 30; Murphy v. Tumbrink, 25 S.W. (2d) 133, l.c. 135. (3) Under the law and the written contract in this case, there is an implied right for defendant to have, and plaintiff to furnish, a reasonable place for depositing the dirt necessarily removed in quarrying the rock. Any purported verbal contract was merged in the then existing and subsequent extension written contract. Chouteau v. Railroad Co., 122 Mo. 376; Crabb v. School District, 93 Mo. App. l.c. 261; 6 Ruling Case Law — Contracts, page 856; Hutchinson v. Lord (Wis.), 60 Am. Dec. 388; 12 Am. Jurisprudence, page 766; Green v. American Railway Co., 34 S.W. (2d) 1039, l.c. 1042; Brumley v. McCormick, 17 S.W. (2d) 597; Home Insurance Co. v. Mercantile Co., 284 S.W. 834; Bisesi v. Farm Loan Co., 78 S.W. (2d) 871. (4) E.L. Lynch, under the evidence, did not, in fact, make an oral contract with plaintiff, and in any event, had no legal right or authority and could not make a contract binding on defendant. 7 Words and Phrases, First Series, 6792; 4 Words and Phrases, under subject of Superintendent; Munroe v. Ley & Co., 156 Fed. 468, 84 C.C.A. 278; Salem v. McClintock (Ind.), 59 A.S.R. 330; Bixler Co. v. Riney, 7 S.W. (2d) 396; 21 R.C.L. 853, and 21 R.C.L., Perm. Supp., page 5117; 21 R.C.L., 905; Southern Co. v. Gilkey, 89 A.L.R. 888; Mattlock v. Paregoy, 173 S.W. 8, 188 Mo. App. 95; Johannes v. Fuel Co., 199 S.W. 1032; Beyer v. Coca Cola Co., 75 S.W. (2d) 642, Cit.; Corporation v. Byrnes, 38 S.W. (2d) 750; Brown v. Railroad, 67 Mo. 122; Barcus v. Ralls Co., 26 Mo. 102; National Bank v. Carleton, 67 S.W. (2d) 69, 334 Mo. 339; Hannon Co. v. Trust Co., 251 Mo. 553, l.c. 557; Fidelity Bank v. Dry Goods Co., 293 Mo. 194; Preston v. Mo. Co., 51 Mo. 43, l.c. 47; Hardware Co. v. Grocery Co., 64 Mo. App. 677. (5) No consideration for the purported verbal contract relied on by plaintiff. Smith v. Sickenger, 202 S.W. 262; Brown v. Irving, 269 S.W., l.c. 687; Koslosky v. Bloch, 191 Mo. App. 257; Estate of Henry Wood, 288 Mo. 589; Lappin v. Crawford, 186 Mo. l.c. 471; (6) Proper measure of damages is different in value of freehold immediately before and immediately after alleged injuries thereto. Robinson v. St. Joe, 97 Mo. App., l.c. 508; Faust v. Pope, 132 Mo. App., l.c. 296; Farrar v. Railroad, 101 Mo. App., l.c. 145; Coffman v. Railroad, 183 Mo. App. 623; Robinson v. Mining Co., 178 Mo. App. 531; Krebs v. Construction Co., 144 Mo. App. l.c. 653; McMillan v. Columbia, 122 Mo. App. 35.

SHAIN, P.J.

We are called upon in this case to review the action of a Circuit Court who has ignored the provisions of section 1003, Revised Statutes of Missouri 1929, and given a new trial after verdict and judgment for plaintiff.

It appears that the plaintiff herein executed a lease or grant to the defendant for the exclusive right to remove, quarry and remove rock on plaintiff's farm in Holt County, Missouri. The land leased is described as follows, to-wit:

"Section 4, Township 59, Range 38, containing five acres more or less, for a term of one year beginning 30 days of Oct. 1933, and ending 30 days of Oct. 1934, lessee shall have the right to renew this lease upon giving lessor thirty days written notice before the expiration of this lease."

It appears that a question arose concerning the dumping of dirt and refuse incident to quarrying. The plaintiff bases her cause of action on an alleged oral contract with defendant touching the placing of the dirt and refuse. The allegations of plaintiff as to the oral contract are as follows:

"That defendant would be permitted to deposit a large amount of dirt on the yard in front of plaintiff's dwelling and extending to the west along the edge of the bluff from the said dwelling of the plaintiff, and defendant agreed that in consideration of being permitted to deposit the dirt upon the yard and lots of defendant that they would grade the yard and lot on a gradual slope from the dwelling and from the bluff...