Tirry v. Hogan

• Citation: 163 S.W. 873,181 Mo. App. 48
• Parties: TIRRY et al. v. HOGAN et al.
• Decision Date: 03 February 1914
• Court: Missouri Court of Appeals

163 S.W. 873

181 Mo. App. 48

TIRRY et al. v. HOGAN et al.

St. Louis Court of Appeals. Missouri.

February 3, 1914.

1. DAMAGES (§ 22)—CONTRACTS—BREACH.

In an action for breach of contract, the damages recoverable are such as may fairly and reasonably be considered either as arising naturally—i. e., according to the usual course of things—from such breach, or such as may be reasonably supposed to have been within the contemplation of both parties, when they made the contract, as the probable result of the breach.

2. DAMAGES (§ 121)—CONTRACTS—BREACH— MEASURE OF DAMAGES.

Where defendants, in order to induce plaintiffs to move their sawmill from Illinois to Missouri, agreed to furnish plaintiffs with sufficient logs to cut 240,000 feet of lumber of specified dimensions, for which they were to receive $5 per 1,000 the cost of sawing being $2.50 per 1,000, and plaintiffs only furnished sufficient lumber to cut 61,000 feet, plaintiffs' measure of damages was the difference between the profit they would have received, had they been furnished sufficient logs to cut the agreed quantity, and the profit realized from cutting the logs actually furnished.

3. DAMAGES (§ 122)—CONTRACTS—BREACH.

Defendants contracted to furnish plaintiff with logs sufficient to cut 240,000 feet of lumber at $5 per 1,000 and after cutting began induced plaintiffs to make trips back and forth to their home in Illinois, because of defendants' delay in furnishing logs. Defendants never furnished the contract quantity. Held, that plaintiffs were entitled to recover their expenses during the time the mill was out of logs and in going to and returning from their homes, not as damages flowing from the breach of the original contract, but for extra services performed by them outside of the contract at defendants' expense.

4. DAMAGES (§ 218)—CONTRACTS—BREACH— INSTRUCTIONS.

In an action for breach of a contract to furnish plaintiffs with a specified quantity of logs as an inducement to move their mill, an instruction that, in estimating plaintiffs' damages, the jury might allow the reasonable value of railroad fares and traveling expenses for plaintiffs and their men between their homes and defendants' place, due to defendants' failure to furnish sufficient logs to keep the mill in steady operation, "as you may, from the evidence, find that plaintiffs had good reason to believe that such expenses and loss of time were reasonably necessary to the proper performance of plaintiffs' part of the contract," etc., so far as quoted, was erroneous as leaving the question of the value of such trips and the necessity therefor to plaintiffs' judgment.

5. APPEAL AND ERROR (§ 1068)—REVIEW— INSTRUCTIONS—DAMAGES—PREJUDICE.

Where, in an action for breach of contract to furnish logs to the owner of a sawmill, the amount allowed was less than the actual damage sustained by the direct breach of the contract, the judgment would not be reversed for an erroneous instruction authorizing a recovery of railroad fares and traveling expenses paid out by plaintiffs and their men, due to delays in furnishing the logs, under Rev. St. 1909, § 2082, providing that judgments shall not be reversed unless the appellate court shall believe that the error materially affected the merits.

6. PARTNERSHIP (§ 219)—PARTIES—JOINT AND SEVERAL CONTRACTS—STATUTES.

Rev. St. 1909, § 2769, provides that all contracts which by the common law are joint only shall be construed as joint and several; and section 2772 declares that in all cases of joint obligations and joint assumptions of copartners suits may be prosecuted against any one or more of those liable. Held, that where plaintiffs sued father and son as partners, and failed to prove the partnership, they were nevertheless entitled to recover against the son on proving a cause of action against him.

Appeal from Circuit Court, Jefferson County; E. M. Dearing, Judge.

Action by H. E. Tirry and another against John J. Hogan and another. Judgment for plaintiffs against defendant John J. Hogan, and he appeals. Affirmed.

Action by plaintiffs against M. E. and John J. Hogan for damages claimed to have accrued to plaintiffs by reason of a breach of contract entered into between plaintiffs and defendants, as it is alleged. The petition avers that on October 24th, 1910, defendants entered into a verbal contract with plaintiffs under and by which it was agreed that if plaintiffs would furnish a certain sawmill, engine and machinery, and necessary men to operate the same, putting up and operating the mill at defendants' premises in Jefferson county, Missouri, within a reasonable time, that defendants would furnish plaintiffs sufficient timber and logs at the mill to make 240,000 feet of lumber, of dimensions specified, and would pay plaintiffs the sum of $5.00 per thousand feet, or a total of $1,200 therefor; that in addition to furnishing the logs to make these 240,000 feet of described lumber, defendants contracted to furnish plaintiffs' mill certain other quantities of timber to make into ties, agreeing to pay plaintiffs the sum of 8 cents for each tie so made; that in addition to furnishing the timber for the purpose of making the lumber and ties above mentioned, defendants would furnish plaintiffs at the mill, all timber necessary for fuel and necessary water to run the engine, defendants further contracting to at all times keep sufficient logs and timber at the mill to enable plaintiffs to be continually occupied in sawing the 240,000 feet of lumber, as also ties as above, and at no time to permit plaintiffs to run out of wood or water for their engine, or of logs for sawing the lumber and ties, at all times furnishing plaintiffs at their mill with steady sawing until plaintiffs had sawed the amount of 240,000 feet of dimension lumber specified; that relying on the promises and agreements of defendants, plaintiffs accepted the same in good faith and at great expense to themselves and within a reasonable time moved their sawmill, machinery, etc., and laborers a great distance, namely, from Brownstown, Illinois, to defendants' premises in Jefferson county, Missouri, and on December 6th, 1910, had the same at the place there designated by defendants and installed ready for sawing; that defendants began to furnish and did furnish logs and timber to a sufficient amount to enable plaintiffs to cut 61,000 feet, and also furnished certain other timber which defendants sawed into ties; that on or about March 17th, 1911, in violation of the agreements and the contract above mentioned, defendants wrongfully failed to perform their part thereof by failing to furnish sufficient timber to keep the mill and machinery running and plaintiffs and their men at work, and negligently continued to fail to furnish the same until about June 18th, 1911, when defendants again furnished a small amount of timber to plaintiffs at their mill; that defendants furnished some tie timber until about July 4th, 1911; that plaintiffs sawed the timber furnished into ties, but that on July 4th, 1911, and ever since that date, defendants, in violation of their contract and agreement, had negligently failed and refused to furnish plaintiffs at their mill, any timber for fuel, any further timber to be sawed into dimensions lumber, any logs or timber to be sawed into ties, or any water for their mill, though often requested by plaintiffs so to do. Plaintiffs further aver that the reasonable value of the services of the sawmill, machinery, laborers, etc., is about $50.00 per day.

They further aver "that by reason of defendants having failed to furnish timber or logs to plaintiffs' mill from the 17th day of March, 1911, to the 18th day of June, 1911, and by reason of defendants having failed to furnish sufficient timber logs for lumber and sufficient timber for fuel and sufficient water to run plaintiffs' engine, as above mentioned and fully described in this petition, from the 4th day of July, 1911, to this date, plaintiffs have lost large amounts of valuable service and been forced to be without large amounts of valuable time of their said men, laborers, artisans, sawmill, engines and machinery; been forced to expend great amounts of money for railroad fare, hotel bills and traveling expenses in going to and from their homes from said defendants' place of business aforesaid in the sum of $1,095; that by reason of defendants having failed and refused to furnish to plaintiffs at their mill suitable timber and logs for plaintiffs to saw the balance of the 240,000 feet, which is 160,000 feet of 1 by wide and 2 by wide lumber, as aforesaid plaintiffs have been damaged in the sum of $905." Judgment is prayed for $2,000 and costs.

Defendants answered separately by general denials as also by special denials of partnership, the answers being duly verified.

There was testimony in the case tending to prove that plaintiffs lived at St. Elmo, Illinois; that defendant M. E. Hogan was a banker, living in St. Louis but conducting a bank at Altamont, Illinois; that plaintiff Tirry, along in October, 1910, was in Hogan's bank at Altamont, When Hogan asked him if he had a sawmill and if he could move this sawmill from its location in Illinois to Missouri to the premises of John J. Hogan, a son of M. E. Hogan, situated near Kimmswick, Jefferson county, Missouri, and there set it up and saw timber for Hogan and his son. Tirry expressed willingness to take the job if his son-in-law, Leadbetter, was willing. Hogan told him that he would write to his son and let the latter know when to meet them; that his son John was running the business in Missouri for him and whatever bargain he made would be all right. On receipt of a letter signed by John J. Hogan, dated St. Louis, Sept. 7, 1910, and on the letterhead of M. E. Hogan & Sons, plaintiffs met John J. Hogan at the timber tract. This letter was to the effect that the writer, John J. Hogan, understood from his father that Tirry had a sawmill and would...