McDaniel v. Emmick, 149 Mo. App. 274

McDaniel v. Emmick

149 Mo. App. 274 | Mo. Ct. App. | 1910

COX, J.

Action by plaintiff to recover for services inputting and hauling logs. Plaintiff alleges in his petition that defendants promised and agreed to pay him four dollars per thousand feet for cutting and hauling sawlogs and that he hauled 148,195 feet under this contract. At the trial he dismissed as to defendant Em-mick. The case was tried before the court without a jury; no declarations of law were asked or given on either side, the court found the issues for plaintiff, assessed his damages at $341.58, and defendant has appealed.

The errors assigned are the admission of incompetent testimony on behalf of plaintiff and the exclusion of competent testimony offered by defendant, the overruling of defendant’s demurrer to the testimony and the overruling of defendant’s motion for a new trial.

The evidence showed that the defendant was operating a sawmill in Pemiscot county, and that at about the time of the alleged contract sued on in this case Mr. Beyers, the president of the defendant company, in behalf of the company, entered into a contract with de*277fendant Emmick by which Emmick had agreed to cut and haul all logs for the use of the mill. Plaintiff’s testimony was to the effect that he had a conversation with Beyers in which Beyers told him that Emmick was to cut and haul the logs. Plaintiff then said to Beyers that he would not haul for Emmick and Beyers then said that he would see that plaintiff got his pay if he did haul, and plaintiff refused to accept that, but insisted that if he hauled he must do so upon the credit of the defendant company, and that Beyers then made the agreement with him in that way, and that in pursuance thereto he hauled the logs sued for in this case. On behalf of defendant Beyers denied the execution of the contract but contended that all he said to plaintiff was that he would see that Emmick did not fall down. No declarations of law were asked or given, and we, therefore, assume that the court tried the case upon a correct theory of law, and as the evidence was conflicting as to the contract, his finding thereon is binding upon us. '

Defendant now insists that there was a variance between the pleading and the proof for the reason that the petition alleges that the price charged for the hauling was reasonable and proper, and contends that this made a declaration upon quantum meruit whereas the proof on behalf of plaintiff showed a specific contract. The petition alleges a specific contract and also alleges that the price there charged was reasonable. This contention of defendant was without merit.

Defendant also contends the court erred in overruling its motion for a new trial, and urges upon our consideration that the court abused its discretion in not granting defendant a new trial on the ground of newly discovered evidence. The motion for new trial alleges that defendant had discovered evidence since the trial tending to show that plaintiff had been paid , for hauling the logs sued for except the sum of eighty-seven dollars, and that plaintiff did not do the work on the *278credit given to defendant, but he did it under a contract with John Ennniek and attached to his motion the affidavit of John Emmick and W. L. Hughes; also the affidavit of Bayless L. Guffy, one of the attorneys for defendant. Plaintiff filed counter affidavits and the court overruled the motion. We have examined these affidavits carefully and are clearly of the opinion that the court did not abuse its discretion. It does not appear that defendant’s counsel could not have discovered this testimony prior to the trial just as readily as they have discovered it since and this contention is also without merit. The judgment will be affirmed.

All concur.