White v. Cardwell Stave Co.

• Decision Date: 19 June 1919
• Docket Number: No. 2243.,2243.
• Citation: 213 S.W. 518
• Parties: WHITE v. CARDWELL STAVE CO.
• Court: Missouri Court of Appeals

213 S.W. 518

WHITE v. CARDWELL STAVE CO.

No. 2243.

Springfield Court of Appeals. Missouri.

June 19, 1919.

Rehearing Denied July 10, 1919.

Appeal from Circuit Court, Dunklin County; W. S. C. Walker, Judge.

Action by J. W. White against the Cardwell Stave Company. From judgment for plaintiff in circuit court on appeal from judgment in his favor in the justice court, defendant appeals. Affirmed.

John T. McKay, of Kennett, for appellant. Jas. A. Bradley and O. Zimmerman, both of Kennett, for respondent.

FARRINGTON, J.

The plaintiff recovered a judgment against defendant in this suit, which was begun in the justice court, and on appeal in the circuit court after a trial to a jury the plaintiff again recovered, from which judgment the defendant appeals.

The suit was begun in the justice court on the following document:

                Cardwell Stave Company, Dr., to J. W. White for
                  Timber
                On Kelley Williams contract .......... $ 28 93
                On Johnson and Goodrich contract .....   30 60
                On Tate contract .....................  190 00
                                                       _______
                    Total ............................ $249 53
                

Before going to trial in the circuit court, the defendant filed a motion asking that the plaintiff be required to state his cause of action more specifically, and charged that the proceeding begun by the plaintiff was vague and indefinite. The motion was overruled, and the case then went to trial on the merits. The defendant did not stand on the motion.

The facts of the case, as disclosed by the evidence, are: That the plaintiff was selling timber to the defendant and delivering them at a bridge belonging to the defendant in Buffalo Ditch. The timber was cut from the land of the plaintiff above the bridge and was floated down the ditch to this bridge.

The contract entered into between the parties consists of letters, the first being dated January 11th, written to the plaintiff by defendant, setting out the terms on which the timber was to be sold and delivered, the kind of timber to be delivered, and the prices. This letter was accepted in a letter written by the plaintiff on January 12th, and on the 14th of January the defendant acknowledged plaintiff's acceptance.

Without going into great detail, it is sufficient for the purpose of this opinion that plaintiff's evidence showed that he sold and delivered at the bridge at Buffalo Ditch timber which he was having cut from his land by three subcontractors, one made with Kelley Williams, one with Johnson and Goodrich, and one with Tate. It further appears that Tate for some reason quit, and Kelley Williams took up his contract and carried it out. It also appears from plaintiff's testimony that there was delivered at the delivery point certain of this timber which defendant let get away and float down the ditch, and also that there were 250 logs sunk, for all of which the plaintiff received no pay. The defendant admitted that it did take from the ditch timber which sunk, but claimed that it was of no value, and that it took it out of the ditch under an agreement it had with the county court to keep the ditch free from sunken timber.

There is sufficient evidence to show that the plaintiff delivered sufficient timber at the point of delivery which he was not paid for, and for which this suit is brought; the defendant's witness admitting that it paid no one for the timber which had sunk and which it took out of the ditch. There was an issue of fact on the question as to whether any one else floated timber down to that point. Plaintiff's evidence showed that this timber was the only timber floated there to that place. We therefore hold that there was sufficient evidence to sustain the judgment rendered.

The serious point in the case, however, whether the statement heretofore copied was a sufficient statement to comply with section 7412, Revised Statutes of 1909, which requires that the plaintiff file with the justice the instrument sued on, or a statement of the account, or the facts constituting the cause of action upon which the suit is founded. It has been repeatedly held that technical rules of pleading shall not be required in justice courts, and that any statement of a cause of action begun before a justice of the peace is sufficient if it apprises the opposing party of the nature of the action and is sufficient to bar another cause of action. Dalton v. United Railways Co., 134 Mo. App. loc. cit. 395, 114 S. W. 561, and cases cited.

We have found three cases which deal with statements very similar to the one in this case. The case of Moffitt-West Drug Co. v. Crider, 124 Mo. App. 109, 110, 100 S. W. 1099, 1100, was a suit begun in the justice court for goods bought on account. A motion was filed by the defendant before going to trial, and it would appear from reading the opinion that the defendant stood on the motion, and the appellate court reversed and remanded the cause. This case differs from the present one, in that the defendant here waived the question raised in the motion and went to trial, which leaves the only question for us to determine whether the statement filed was sufficient on which to base any cause of action. If it was, then the defendant by going to trial waived the defect sought to be corrected in the motion. If it is not sufficient to state a cause of action, then the question...