American Hardwood Lumber Co. v. Nickey

101 Mo. App. 20 | Mo. Ct. App. | 1903

BLAND, P. J.

Declaration of law No. 6, given by the court, is erroneous.

The common-law rule of survivorship in one member of a firm on the death of the other, has not been abrogated in this Státe (Avery v. The Kansas City & Southern R’y Co., 113 Mo. 561; Judy & Co.’s Surviving Partner v. Mfg. Co., 60 Mo. App. 114), and Kilgore, as the surviving partner of the firm of Short & Kilgore, had the legal right to assign the chose in action in suit to plaintiff.

The only issue of fact for trial was whether or not Short & Kilgore had performed their part of the contract of September 10, 1895. On June 15, 1896, this contract, by the consent of the defendant and Short & Kilgoi-e, was put an end to, and a new contract was made by and between plaintiff and defendant, in respect to the running/of the mill and the furnishing of logs. The inquiry, therefore, as to the performance of the contract by Short & Kilgore was confined to the period of time running from September 10, 1895, to «Tune 16,1896.

The evidence is that on June 4, 1896, the defendant attached the mill and stopped its operation and that Short & Kilgore did not thereafter run the mill or have charge of it. In respect to the attachment, the court declared the law as stated in declaration No. 5, given of its own motion. The attachment suit was never tried, but was settled by the payment of $2,692.91 to defendant by Short & Kilgore through the plaintiff. Whether or not Nickey had reasonable grounds for the attachment, it seems to us, was not material in this suit. By the settlement of the attachment suit and the payment of the amount demanded by Nickey, both parties waived their right to have the grounds for the attachment inquired into. Therefore, we think the fifth declaration of law is inapplicable to the facts in the case and should not have been given.

The breach of the contract by Short & Kilgore, relied on by the defendant, was that Short & Kilgore had damaged the mill, machinery and engine in an amount exceeding the sum of $1,500.

The contract of September 10, 1895, contains the following stipulations:

“It is further understood and agreed that if the said party of the second part shall fail, neglect or refuse to keep and perform his part of this agreement they shall forfeit to the said party of the first part all the payments made to the said party of the first part under and by virtue of this agreement. . . .

‘ ‘ The said party of the second part further agrees to make all necessary repairs on the said machinery and buildings, to keep the said sawmill plant in good running order, and at the end of the term herein provided for to deliver the said land, sawmill plant and machinery to the said party of the first part, in as good order as the same now is or may hereafter be put, less necessary wear and tear,” etc.

In respect to the advance payment of the $1,500, the contract provides that, “said snm shall be taken and considered part payment for the timber so to be delivered by said party of the first part (Nickey) to the said party of the second part, and also to be held by the said party of the first part as security for the due and proper performance of said contract by the said party of the second part.”

In respect to these provisions of the contract and to the answer of plaintiff, filed in the Oregon Circuit Court, we said, when this cause was here on the first appeal, that, “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.” Lumber Co. v. Nickey, 89 Mo. App. (St. L.) l. c. 288.

Plaintiff proved that Short &. Kilgore complied with the contract in every respect while they operated the mill, except that part which required them to deliver the mill and machinery to Nickey in as good order as when received by them, less necessary wear and tear. Plaintiff offered to prove that Short & Kilgore kept this' part of the contract by the evidence of Woerheide as set out in the application for a continuance, but this evidence was excluded for the reason that the application did not state that Woerheide saw the mill when delivered to Short & Kilgore or when delivered' to the plaintiff.

The statement of Woerheide in the application for a continuance was the expression of the witness’s opinion as to the condition of the mill when received by Short & Kilgore and when delivered by them. Whether or not he was qualified to give the opinion is not disclosed by his own evidence or by any other evidence in the record. Defendant had admitted that if Woerheide was present he would swear to the facts stated in the application for a continuance, and while defendant did not waive his right to object to the competency or relevancy of the evidence, he did thereby waive his right to cross-examine Woerheide, as to his knowledge of the facts upon which he based his opinion, and we think, in the circumstances, it was error to exclude the evidence. When the application for a continuance was overruled, plaintiff was without other evidence to show the mill and machinery was not materially damaged while in the possession of Short & Kilgore. From the connection that Douglas and Woerheide had with the mill it seems to us that they would be able to testify in respect to its condition when it passed from the possession of Short & Kilgore to the plaintiff. They were both absent and the plaintiff was deprived of their evidence and, while we think the court did not err in overruling the application for a continuance, we think the absence of these witnesses and the exclusion of Woer-heide ’s evidence put the plaintiff in a position where it was powerless to produce any evidence on the most vital issue of fact in the case.

On all the evidence heard the judgment was for the right party, independent of instruction No. 6 given by the court of its own motion. We are of the opinion, however, that the exclusion of Woerheide’s evidence was error and from an examination of the whole record are convinced that in the interest of substantial justice a new trial should have been awarded.

The judgment is affirmed.

Eeyburn and Goode, JJ., concur.