207 Mo. 463 | Mo. | 1907
— Coleman sued Reynolds in replevin in the circuit court of Pemiscot county to recover possession of 256,000 feet of. described cottonwood lumber, in part in certain cars and in part in a certain mill yard, and was put in possession under his writ. At the trial judgment went in Coleman’s favor and Reynolds appeals here.
No point is made on the petition, which is in conventional form and needs no attention.
The answer was a specific denial of each averment of the petition, except that relating to the value of the lumber. It is alleged, furthermore, that defendant owned the lumber at the time suit was brought and owns it now and is entitled to the possession. The damages for plaintiff’s alleged unlawful taking and detention is put at the sum of $3,000, and defendant claims said damages and the return of the lumber. The answer then avers that prior to the institution of the suit at bar defendant, Reynolds, as plaintiff, brought replevin against oue Hurd for the same lumber and by the writ in that case was put in possession of it by the sheriff of Ppmiscot county; that said prior suit is pending and undisposed of in the circuit court of said county; that-said lumber, by the writ issued in said prior suit, came into “the custody of the court as aforesaid, and defendant says that plaintiff herein cannot have and maintain his cause of replevin against said lumber and property for the reason above stated.”
Finally, the answer states that “defendant prays that said O. P. Hurd may be by a proper order of court brought in and made a party plaintiff to this action; that said two suits now pending may be consolidated and that upon a proper hearing defendant have judgment as above prayed herein, and for his costs.”
I. If the concluding clause of the answer, by whatsoever benevolent and bland interpretation, be deemed two motions, one that Hurd be brought in as a party plaintiff and the other that the two replevin suits be consolidated, yet we find no ruling, nisi, on such submerged motions, so hid away in such unexpected place as an answer. We find no disposition of the motions in the abstract, and no error predicated in the motions for new trial and in arrest, on any failure to rule in that behalf. Therefore, such questions become by-matter and out of the case.
II. In 1902 Coleman was a millman, running a saw mill in Pemiscot county and manufacturing lumber. In that year one Stinson appeared on the scene representing Houston Brothers of Cairo, Illinois, and contracted in their name and in their behalf with plaintiff for a lot of lumber — as we infer, “in the stick.” At all events, whether in the stick or not, it was not ready for delivery, was roughly estimated at nearly 350,000 feet — the price, $11.75 per 1,000 feet “log run.” At a certain time plaintiff entered upon the performance of this contract, and we take it some of the lumber had been inspected by Stinson; but whether this be so or not, plaintiff demanded an advancement to pay his mill hands, and Stinson informed him that Reyholds would advance the money. There was evidence introduced by defendant tending to show that Houston Brothers refused to take the lumber on the terms agreed on, or propositions made to their agent, Stinson, and refused to make any advancement on lumber “in the stick;” that plaintiff was informed of that fact and thereupon entered into a new contract with Reynolds with full knowledge of the fact that he was thereafter dealing with the latter and not with Houston Brothers.
The case was put to the jury on two theories by plaintiff’s instructions. The first theory was based on the terms of the new arrangement finally entered into between plaintiff and defendant. It involves the question whether the title and right to possession remained in plaintiff under the terms of the contract until the lumber was paid for by defendant. The second theory is based on the notion of a rescission of the contract by plaintiff; and this theory involves a consideration of the facts uncovered at the trial relating to alleged violations of the contract by Reynolds and his agent, one Bostick, upon which facts plaintiff builds a contention that he was entitled to rescind and did rescind.
It stands admitted in the case that the lumber was not paid for in full by defendant. It stands admitted defendant never tendered such payment. If, therefore, it be determined by the uncontradicted testimony that under the contract the sale was cash on delivery, that defendant was not entitled to possession until payment was- made (the two acts being concurrent), and that the title was to remain in plaintiff until such time, then we need not consider the second theory nor the instructions on either side relating to that theory because error in the giving or refusing of such instructions could not be error materially affecting the merits of the case. If, however, there was any substantial evidence in the case that the terms of the sale did not include cash on delivery, and that the title was not to remain in plaintiff until the lumber was paid for; and if the facts tend to show that under the contract the defendant was entitled to and in rightful possession of the lumber at the institution of the suit (unless the con
Attending to the contract between plaintiff and defendant the record shows this condition of things: The new arrangement between plaintiff and defendant was built on the old arrangement made by Stinson with plaintiff for Houston Brothers. Some of the terms contemplated by the old arrangement were not changed, and some of them were. Among the terms remaining unchanged were those relating to delivery and to the possession of and title to the lumber. Two witnesses testified about the old agreement (an oral one) — plaintiff and said Stinson. Plaintiff testified the arrangement was that “the lumber became his [referring to Stinson as representative of Houston Brothers] when it was was put aboard the cars, when it was put on the cars and paid for by him.” Referring to the new arrangement with Reynolds the plaintiff testified that, when the squabble arose with Stinson, he met Reynolds who asked him: “What is the matter with you and Stinson down there; . . .it looks like you people could get along?” Plaintiff then told Reynolds the details and explained to him the merits of the trouble. Thereat Reynolds told him the advance payments had been made by him (Reynolds) — “That is my money in that lumber, I would like to have the lumber.” Plaintiff said to him: “All right;” he would as soon let him (Reynolds) have it as the others “if he would take it according to contract.” Reynolds then asked what the contract was, and plaintiff told him that he made two propositions to Stinson relating to measurement — one, “inch for inch, or whatever it measured;” the other, “% up for an inch, and under % for % inch.” Plaintiff then and there told defendant that Stinson had agreed to take the lumber on “the first proposition,
Stinson’s deposition was taken and read by defendant. That deposition in substance begins with the affair (as to details) after Reynolds got into it. He does not deny that propositions passed between him as the representative of Houston Brothers and plaintiff, and that he (Stinson) accepted one of these propositions on behalf of Houston Brothers; nor does he undertake to testify in regard to the terms of the contemplated deal as it stood originally between him and plaintiff. He dismisses the original deal by planting himself on the theory that it was declared off by Houston Brothers. He says “Houston Brothers had been advised of the pending deal and wired me to make no ad
Tbe defendant took tbe stand on bis own behalf and testified, in substance, that knowing Stinson rep>resented Houston Brothers and was negotiating for tbe Coleman lumber and that tbe deal was off, be bought tbe lumber himself through Stinson. He subsequently made tbe advance payments referred to in person and at tbe end of these payments took a receipt, writing it himself and banding it to Coleman for bis signature. This receipt runs as follows:
“Becd. of S. P. Eeynolds for Eeynolds & Crews, tbe sum of 1,746 and no-100 as first payment for 349,-200 feet of cottonwood lumber bought of me, H. P. Coleman, by H. Stinson, representing Houston Brothers of Cairo, the lumber to be delivered in accordance with the trade made with Stinson.
“H. P. Coleman.”
It will be seen that this written memorandum unquestionably refers to tbe deal between Stinson, acting for Houston Brothers, and plaintiff, and recognizes that tbe delivery of tbe lumber was to be made in accordance therewith.
We have read and weighed painstakingly .every
The case then may proceed on the theory that plaintiff’s version of the terms of the original contract stands practically confessed, because the force of defendant’s testimony was leveled at establishing the fact that he (Reynolds) and not Houston Brothers purchased the lumber under the new arrangement, that Coleman was fully advised of that fact, and that no substantial grounds for rescission were laid. Nowhere else in the record is there any contradiction of the fact that the terms of the trade were cash on delivery on board the cars, and that the lumber remained plaintiff’s until paid for. To the contrary, there is by indirection and inference cogent testimony, unchallenged, sustaining plaintiff’s theory of the terms of the agreements with Stinson and Reynolds.
It seems that Stinson not only represented Houston Brothers, but in certain particulars acted for Reynolds. One of them was that after Reynolds took Houston Brothers’ place and agreed to make the advance payments he (Stinson) caused a brand, to-wit, “S. P. R.,” to be put on certain stacks of lumber in plaintiff’s mill yard, which brand was the initials of defendant’s name. Coleman says this brand was put there to show merely what stacks of lumber were in the deal so that an estimate could be placed on them for the purpose of
Presently Coleman was dissatisfied with Stinson’s inspection. Presently Mr. Reynolds sent another agent to inspect and receive the lumber — one Bostick. He measured and received a small part of it, when again plaintiff became dissatisfied with the inspection. He claimed Bostick was not taking it “log run,” but was rejecting lumber that should be taken. Thereat plaintiff forbade Bostick to proceed in the way he was doing; and, basing his action on the foregoing and other facts developed in this connection, forbade him to proceed at all and, refusing to go on with the contract, undertook to sell the lumber remaining to one Hurd. Here again there is no dispute in the evidence. It stands unquestioned that by the arrangement with Hurd he was to take the lumber at a slight advance per 1,000 feet (75 cents) and under an oral contract containing the same terms in the Reynolds contract — that is, it was to be placed by plaintiff on board the cars and was to be paid for on delivery, the title and possession to remain in plaintiff until paid for. A bayou ran between
The case went to the jury with the foregoing evidence unimpeached. The record shows without any question that Reynolds had paid for more lumber than was actually delivered to him; that Coleman before suit offered to settle with him and pay back the excess; that Reynolds declined to receive back the money and claimed the lumber. It seems that after plaintiff and Hurd entered into their agreement, a few cars (two, as we see it) were loaded at the loading switch, but the great bulk of the lumber still remained in stacks in plaintiff’s mill yard. In this condition of things, without making Coleman a party, Reynolds brought a replevin suit against Hurd, and the sheriff took all the lumber and put it in the possession of Reynolds. Thereupon Coleman brought the present suit, made a recaption, and subsequently paid into court for Reynolds’ benefit so much of the $1,746 as remained after deducting the price of the lumber that Reynolds actually got.
On this record there can be no question but what (unless the Hurd replevin suit is in the road) plaintiff was entitled to a peremptory instruction that the jury should find for him. The contract remaining executory, and payment and delivery being concurrent
Plaintiff did not ask a peremptory instruction, but was given an instruction putting it to the jury to find as a fact whether the contract between plaintiff and defendant was cash on delivery on board cars; and they were told that if they found the contract to he that way, and if they further found that the lumber was not paid for, then their finding should he for plaintiff. If the jury had found against plaintiff under that instruction, it would have been the duty of the court to have .set their verdict aside instanter on the record presented to us. No such verdict could stand. The jury, however, found for plaintiff, thus doing the only thing they could do, and the very thing the court should have told them to do, without regard to the issue of rescission. Their verdict being right, and a judgment thereon following, it ought not to be reversed because of harmless errors in other instructions addressed to an immaterial issue on rescission. In this view of the case the question of rescission is not reached; and the facts depended upon by plaintiff to show a rescission and a right to a rescission, and the facts depended upon by defendant to show no right to a rescission and no rescission, need not be developed.
III. But it is contended by defendant that the pendency of the prior replevin suit of Reynolds v. Hurd, pleaded in the answer, must be taken into ac
If Reynolds has subjected himself to annoyance in instituting the first suit, or put himself in the way of loss by voluntarily enmeshing himself in entanglements, then he fell into a pit he digged himself, it is his affair and Coleman cannot be hindered or delayed thereby in enforcing his rights to his own property. [Ilsley v. Stubbs, 5 Mass. 280.] If the cause of Reynolds v. Hurd had proceeded to judgment, that judgment would not be res judicata as to Coleman, who was no party to it and did not hold in subordination to Hurd’s title as his grantee, donee, or otherwise. [Womach v. St. Joseph, 201 Mo. 467.] Therefore, if the judgment would not bind him, so much the less will the mere pendency of the suit bind him or affect his rights. We rule the point against the defendant.
Questions are made here by learned counsel of defendant touching the admission and exclusion of testimony. We find no reversible error in any assignment on that score.
The judgment must be affirmed.