State v. Ellison

• Decision Date: 13 February 1917
• Docket Number: No. 19387.,19387.
• Citation: 192 S.W. 725
• Parties: STATE ex rel. METROPOLITAN ST. RY. CO. v. ELLISON et al., Judges
• Court: Missouri Supreme Court

192 S.W. 725

STATE ex rel. METROPOLITAN ST. RY. CO. v. ELLISON et al., Judges

No. 19387.

Supreme Court of Missouri. In Banc.

February 13, 1917.

Motion for Rehearing Denied February 24, 1917.

Certiorari by the State, on the relation of the Metropolitan Street Railway Company, against James Ellison and others, as Judges of Kansas City Court of Appeals. Writ quashed.

John H. Lucas and L. A. Laughlin, both of Kansas City, for relator. T. B. Wallace, of Kansas City, and Dawson & Garvin, of St. Louis, for respondents.

WALKER, J.

This is a proceeding in certiorari. The relator asks that the judgment of the Kansas City Court of Appeals in the case of the Metropolitan Street Railway Company v. Broderick Bascom Rope Company, 182 S. W. 765, hereinafter designated as the "Court of Appeals Case," be quashed. The opinion of the Court of Appeals affirmed the judgment of the trial court in favor of the defendant, and it is alleged that its ruling contravenes the doctrine announced in Ottumwa Bridge Company v. Corrigan, 251 Mo. loc. cit. 667, 158 S. W. 39, hereinafter designated as the "Bridge Company Case." The basis of the relator's contention is found in the Court of Appeals' ruling affirming the action of the trial court in refusing to give a certain instruction, as follows:

"The court instructs the jury that if you find and believe from the evidence that defendant consented to delay in putting in use the rope in controversy, then defendant cannot complain of any unreasonable delay, if any, in putting said rope into use, and you should disregard such defense in making up your verdict."

The ruling of the Court of Appeals Case, affirming the action of the trial court, is embodied in the following paragraph of its opinion:

"The objection made by plaintiff in support of the present appeal relates principally to the action taken by the court in refusing instructions which it offered. These relate to the matter of waiver, wherein the jury were directed that if the defendant waived or consented to certain delays in putting in the rope for use, or in the manner of its use, no defense could rest on that ground. No waiver was pleaded by plaintiff, and hence that question was not in the case." Metropolitan St. Ry. Co. v. Broderick Bascom Co., 182 S. W. 765.

It is alleged that this ruling contravenes that of this court in the Bridge Company Case, wherein it was announced that:

"In those cases in which time is of the essence of the contract either by reason of legal presumptions arising from its nature and general terms, or by being made so by express stipulation, the failure to perform within the time stated may be waived like any other breach (citing cases), and under our system of pleading, whenever the answer pleads the breach affirmatively, such waiver may be, and should be, pleaded in the reply (citing cases). In this case the time of completion not being of the essence of the contract, it was sufficient to show, under the general allegation of performance, that all its other stipulations were fully performed, and the work completed and accepted. But while it was unnecessary to a recovery upon the contract that the work should have been completed upon the day named the defendants were entitled to damages for a breach of that provision, and presented their counterclaim to recover them in this suit. This presented for the first time the issue of a breach of the time provision of the contract, and the plaintiff met it, as it had the right to do, by an attempt to justify its course in the reply." Ottumwa Bridge Company v. Corrigan, 251 Mo. loc. cit. 692, 158 S. W. 39.

A review of the facts as presented in the opinions of the Court of Appeals Case under consideration, together with those of the Bridge Company Case, will enable it to be determined if there is merit in the relator's application.

The history of, and the facts in, the Court of Appeals case are as follows: On a former appeal the case was brought to this court by the Metropolitan Street Railway Company as appellant, and on its motion the same was transferred to the Kansas City Court of Appeals. The action, as in the case upon which relator's application is now based, was for damages alleged to have been sustained by the Metropolitan Street Railway Company for the failure of the Broderick Bascom Rope Company to comply with a written guaranty in furnishing a wire cable rope to the street railway company free from defects and fit for service for the time stated in the guaranty. The Court of Appeals reversed and remanded the case, and directed same to be tried in accordance with its opinion (156 Mo. App. 640, 137 S. W. 633). Upon a remanding and retrial a verdict was...