Stewart v. Droste, 29319

CourtCourt of Appeal of Missouri (US)
Writing for the CourtMATTHES; ANDERSON, P. J., and ELMO B. HUNTER
Citation294 S.W.2d 600
PartiesJohn STEWART (Plaintiff), Appellant, v. L. DROSTE (Defendant), Respondent.
Docket NumberNo. 29319,29319
Decision Date18 September 1956

Page 600

294 S.W.2d 600
John STEWART (Plaintiff), Appellant,
L. DROSTE (Defendant), Respondent.
No. 29319.
St. Louis Court of Appeals, Missouri.
Sept. 18, 1956.

A. J. Murphy, Jr., and William G. Goodin, Louisiana, for appellant.

Suelthaus & Krueger, St. Louis, and Warren H. May, Louisiana, for respondent.


Action in quantum meruit. Plaintiff alleged that defendant owed him $350 for preparing land and sowing clover and lespedeza therein for 1948 and 1949, and a balance of $4,900 for feeding and caring for certain livestock in 1948, 1949, and 1950. Tried without a jury, the trial court found against plaintiff, and he has appealed.

Defendant and his wife owned a large tract of land in Pike County, Missouri. According to plaintiff's testimony he rented approximately 1,200 acres thereof by oral agreement in March, 1948. The substance of the agreement according to plaintiff's version thereof was: defendant was to furnish plaintiff 15 cows, 1 bull, 10 brood sows, and 1 boar. Plaintiff was permitted to

Page 600

take 5 of his cows on the property. Labor necessary to farm the land was to be furnished by plaintiff. All crops were to be fed to the livestock. The increase from the cows and hogs was to be sold in the names of both parties but through defendant, and the net proceeds divided equally between the parties. Crops not fed to livestock were to be sold and proceeds divided equally. The period of time that the agreement was to remain in effect was not fixed by plaintiff's testimony. Defendant's testimony established the existence of the foregoing terms, but he insisted the contract contained these additional provisions: The corn belonging to defendant that was stored in a crib on the property when plaintiff took possession was to be fed to the livestock on condition that plaintiff leave a like amount in the crib when he vacated the premises; material for repairing fences was to be furnished by defendant, and labor for making such repairs by plaintiff. If it became necessary to purchase feed or supplement, such purchases were to be charged to and paid by defendant who was to be reimbursed upon sale of livestock. Defendant was to designate the tillable land that could be used for raising crops as well as land to be used

Page 602

for pasturing livestock. The expense of combining or threshing small grain was to be borne equally between the parties. Defendant stated the arrangement was to continue for a period of one year.

Plaintiff took possession under the contract. Admittedly the livestock was placed in his possession by defendant. Plaintiff detailed the services rendered by him in preparing and seeding land, and in taking care of the livestock in 1948, 1949, and 1950. In his direct testimony plaintiff stated he was making claim for plowing, disking, and seeding land to clover in 1948 and 1949, and for feeding and general care of the livestock for 1949 and 1950. He fixed the value of all of such services at $5,700, and gave the defendant credit for $500 which he stated was paid thereon. Plaintiff conceded there was corn in one of the cribs when he took possession, which plaintiff fed to the livestock. He fixed the amount of the corn at 440 bushels, whereas disinterested witnesses placed it at approximately 1,000 bushels.

Plaintiff testified that in June or July, 1949, because he was 'having some trouble at home', he requested defendant to purchase his interest in the cattle and hogs. Defendant refused, and suggested that the plaintiff should feed out the livestock. Because the house in which plaintiff was living was destroyed by fire on November 11, 1949, he moved his family to the home of his mother-in-law. However, he took possession of the store building without defendant's knowledge, and retained possession until May, 1951, the date that plaintiff stated he finally and fully vacated the premises. Some time after the parties had the discussion wherein plaintiff requested defendant to purchase his interest in the livestock, defendant asked plaintiff how long it would take him to feed out the stock and vacate. Plaintiff advised 'he wasn't going'. Around the first of March,...

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8 cases
  • Humfeld v. Langkop, KCD
    • United States
    • Court of Appeal of Missouri (US)
    • December 3, 1979
    ...or waiving the contract and suing in quantum meruit. Perles & Stone v. Childs Co., 337 Mo. 448, 84 S.W.2d 1052 (1935); Steward v. Droste, 294 S.W.2d 600 (Mo.App.1956); Fuldner v. Isaac T. Cook Co., 127 S.W.2d 726 (Mo.App.1939). And if the plaintiff elects to proceed on quantum meruit, he ma......
  • General Aggregate Corp. v. LaBrayere, s. 47075
    • United States
    • Court of Appeal of Missouri (US)
    • February 7, 1984
    ...contract and suing in quantum meruit. Perles & Stone, Inc. v. Childs Co., 337 Mo. 448, 84 S.W.2d 1052, 1056 (1935); Stewart v. Droste, 294 S.W.2d 600, 603 (Mo.App.1956). If the plaintiff elects to proceed in quantum meruit, he may introduce the contract evidence as prima facie evidence of r......
  • H & H Mfg. Co. v. Cimarron Ins. Co., 7588
    • United States
    • Court of Appeal of Missouri (US)
    • May 9, 1957
    ...set aside the judgment below only if it is clearly erroneous. Browder v. Milla, Mo.App., 296 S.W.2d 502, 505; Stewart v. Droste, Mo.App., 294 S.W.2d 600, What was the actual contract between the parties? Did they both intend to insure the same property? And if so, which property, the conten......
  • Kranz v. Centropolis Crusher, Inc., WD
    • United States
    • Court of Appeal of Missouri (US)
    • February 2, 1982
    ...Oliver L. Taetz, Inc. v. Groff, 363 Mo. 825, 253 S.W.2d 824 (1953); Julian v. Kiefer, 382 S.W.2d 723 (Mo.App.1964); Stewart v. Droste, 294 S.W.2d 600 Kranz counters with the equally well-settled principle that if a contractor has not substantially completed the contract and if his failure o......
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