89 Mo. App. 270 | Mo. Ct. App. | 1901
After alleging the substitution of the contract of September 10, 1895, the deposit of the fifteen hundred dollars by Short & Kilgore, with Nickey as provided for by the contract, the petition alleges: “That said Short & Kil,'gore also fully performed said contract upon their part in all other respects until on or about June 15, 1896, when said Nickey refused to further fulfill said contract on his part, and refused to permit said Short & Kilgore to complete the same upon their part, although said Short & Kilgore were at said time ready and willing so to do. That said Short & Kilgore have paid said Nickey in full for all said timber by him to them delivered under said contract and no portion of said $1,500 was needed for or applied to the payment of said timber. That upon the wrongful determination of said contract by said Nickey as aforesaid said Short & Kilgore became entitled to have said fifteen hundred dollars, so deposited with said Nickey as aforesaid, returned to them by said Nickey, and did demand of said Nickey the return of the same, but said Nickey failed and refused and has ever since failed and refused to pay said Short & Kilgore said fifteen hundred dollars or any part thereof.” Alleges also an assignment by Short & Kilgore to
The answer alleges that the contract of September 10, 1895, was made by Short & Kilgore for the benefit of plaintiff; that immediately after its execution it was assigned to plaintiff by Short & Kilgore; admitted the reception of fifteen hundred dollars by defendant, but denies that it was paid as an advancement on timber to be furnished by defendant; but that under the contract it was understood and expressly agreed that it should be held by defendant as security for the faithful performance of the contract by the plaintiff Short & Kilgore and for stipulated damages for its breach, denies that on June 15, 1896, or at any other date, defendant failed and refused to perform the contract on his part or that he refused to permit Short & Kilgore to perform; alleges a fraudulent transfer of their property by Short & Kilgore to plaintiff on April 23, 1896, for the purpose of defrauding defendant; sets forth the attachment suit brought by defendant against Short & Kilgore and the settlement of that suit; sets forth the suit which culminated in a judgment in the Oregon Circuit Court and pleads the judgment then rendered as a bar to plaintiff’s right of recovery and further pleads the adjustment of the Cottrell slander suit as a full an’d complete settlement of all matters of difference between plaintiff and defendant and denies all other allegations.
The replication denied the new matter set forth in the answer and pleaded the Oregon county judgment as an adjudication of the fact, that the defendant by the contract of June 15, 1896, had abandoned the contract of September 10, 1895, and pleaded the Oregon judgment as a bar to defendant’s right to retain the fifteen hundred dollars as a forfeiture or as stipulated damages. At the close of all the evidence the court in
The petition counts on a breach of the contract of September 10, 1895, by defendant, and alleges the date of the breach to have occurred on June 15, 1896 — the date of the execution of the substitutional contract between plaintiff and defendant. The evidence of plaintiff does not show conclusively that defendant broke the contract prior to June 15, 1896. On the contrary, it is presumptively shown, by the attachment suit and the settlement of that suit by the payment to defendant of money for logs furnished Short & Kilgore, and by the new contract entered into by and between plaintiff and defendant for the further operation of defendant’s mill, etc. (presumably by the consent of Short & Kilgore), that they (Short & Kilgore) had failed to keep and perform the contract and were for some reason unable to keep and perform it for the future and surrendered their interest in it and agreed that it should be terminated. The only thing that stands in the way of this inference is, the other inference which is fairly deducible from the connection of the lumber company with the contract from its very inception to its termination, viz., that it was the real party in interest in the contract from the start and that Short & Kilgore were but dummies put forward to shield the lumber company in the event a loss should be sustained in the purchase of timber and the operation of the mill. Woeheide, the manager of plaintiff, however, swore that the assignment of the contract by Short & Kilgore on the day of its execution was not accepted by the plaintiff. Be this as i£ may, the fact remains that the defendant is entitled to retain the fifteen hundred dollars, if prior to June 15, .1896, Short & Kilgore failed to keep and perform their part of the contract.
On the trial, the plaintiff relied on the Oregon county judgment as furnishing a bar to the defendant’s right to retain
The answer alleged the deposit of the fifteen hundred dollars by Short & Kilgore with Niekey and the retaining of that sum by him as security for the performance of the contract by Short & Kilgore, and that if they "failed to keep and perform their part of the contract, that the sum should be forfeited; that it was the intention of the parties to said contract that the said sum of fifteen hundred dollars should be taken as liquidated damages for a breach of the contract by Short & Kilgore and that plaintiff by retaining the same had released and discharged all pretended claims for damages set out in his petition, and alleges an abandonment of the contract by the substitution of the contract of June 15, 1896.
The replication denied that the original contract was ab
According to the averments in the answer of the lumber company, in the Oregon county suit, the fifteen hundred dollars were given into the hands of Nickey as a forfeit, should Short & Kilgore fail to live up to the contract, and with the understanding that it should be retained as stipulated damages should they fail to keep and perform the contract. The answer of Nickey in the present suit alleges that in April, 1896, Short & Kilgore violated the contract by making a fraudulent conveyance of all their assets to the lumber' company and that on June 4, following, he instituted an attachment suit against them to recover for logs he had delivered under the contract of September 10. By its answer in the Oregon county case, the plaintiff herein alleged that the fifteen hundred dollars were deposited as a forfeit and as and for stipulated damages should Short & Kilgore fail to carry out the contract. We think this a correct construction of the contract, at any rate, the plaintiff is estopped to assert the contrary by its answer in the Oregon county case (Lilly v. Menke, 143 Mo. l. c. 146), and if it can be shown that prior to the execution of the contract of June 15, they did fail to keep and perform their contract of September 10, the defendant is entitled to retain the money. The petition alleges that Short & Kilgore fully performed the contract on their part until June 15, 1896, when defendant refused to further fulfill the contract on his part. By the Oregon county judgment, the plaintiff established the fact that the September contract was abandoned by the defend
Eor the reason that the suit was tried on an erroneous construction of the scope and effect of the Oregon county judgment, the judgment is reversed and the cause remanded.