Boyle v. Clark

63 Mo. App. 473 | Mo. Ct. App. | 1895

Gill, J.

This suit originated before a justice of the peace and was brought to recover a balance due for sawing some logs into lumber. Plaintiff and one Gideon jointly operated a saw mill and made an arrangement with defendant to saw some logs, the understanding being that Boyle & Gideon were to have one half the lumber for sawing. Defendant delivered logs which yielded one thousand, six hundred and fifty feet of lumber, but instead of leaving the one half at the mill for Boyle & Gideon, he took it all away, promising, however, to bring other logs from which Boyle & Gideon might get their part. After about five years had expired and defendant had failed to supply any more logs, and failed, too, to pay Boyle & Gideon anything for the sawing, plaintiff, claiming to be the sole owner of the account, instituted this action. In the circuit court where the cause was tried on appeal plaintiff had a verdict and judgment for $7.67 and defendant appealed.

Defendant attacks the judgment on several technical grounds, none of which have any merit. It is said that the plaintiff did not show himself entitled to sue on the account, — that it was a chose in action belonging jointly to plaintiff Boyle & Gideon, and that therefore neither of them could sue alone therefor. The contention is without merit. The testimony stands quite uncontradicted (and the jury so found) that before the suit was commenced, plaintiff bought out the interest of Gideon in the account. Plaintiff thereupon became the real party in interest and was the only proper party plaintiff. That there was no assignment in writing is of no consequence; an oral contract of purchase was sufficient.

Neither do we discover any substantial objections to the instructions. Since the defendant refused to pay for the manufacture of the lumber by delivering to the plaintiff the one half thereof, as he had agreed to, he had broken the terms of the contract, and plaintiff was entitled to abandon the special contract and sue in quantum meruit for the reasonable value of such work. Nor did instruction number 2 ignore the alleged defense of the statute of limitations. The jury were not authorized by said instruction to give plaintiff the verdict, unless they, should find that the account accrued within five years.

This was not an action on a special contract and therefore the objection that plaintiff could not sue on a special contract and recover on quantum meruit, is not well taken. It was such a statement as, being filed with the justice, would authorize recovery whether the evidence would show the one or the other. Lemon v. Lloyd, 46 Mo. App. 456, 457; Johnson v. Loomis, 50 Mo. App. 144.

In none of the points suggested in defendant’s brief do we find any reason for disturbing the judgment and it will therefore be affirmed.

All concur.