170 Ky. 271 | Ky. Ct. App. | 1916
Opinion of the Court by
Reversing.
On April 4,1913, the appellee, IT. W. Kelley (defendant), contracted with the appellant, The Mowbray & Robinson Company (plaintiff), whereby he agreed to haul and skid, for the purpose of loading on tram-cars, a quantity of saw-logs, supposed to contain between 900.000 and 1,000,000 feet. He was to be paid for the hauling and skidding of the logs, the sum of $3.00 per 1.000 feet; and after hauling something like one-half thereof, he seems to have abandoned his contract, or ait any rate he ceased to skid any more logs and this, litigation followed. ' ■’
Inasmuch as we have concluded that the judgment is erroneous and must be reversed, we will refrain as much
The allegations of the defendant in his counter-claim by which he seeks to charge the various items constituting the damages which he claims, as well as that which denies the accuracy of plaintiff’s account, altogether fail to comply with the rules of accurate pleading. The plaintiff filed with its petition an itemized statement showing each and all of the payments constituting the total sum of its account • but its correctness is sought to be assailed by defendant in this language: “He denies that the itemized statement of amount filed by the plaintiff in its amended petition is correct, or properly set forth the account between the plaintiffs and defendant, relating to said log job. * * * Said account does not state all of the credits to which he is entitled and charged him with items that he did not receive.” Good pleading would require that he set forth the items which he claims were not allowed him as a credit on defendant’s account, and to point out those which he claims were erroneously charged to him. Furthermore, in charging the alleged breach of plaintiff, in failing to remove the logs from the skids, the language in his pleading is: “He states that it was the duty of the plaintiff under said contract it made with him to remove the logs from the skids and give him room to haul and skid additional logs, until the hauling of said logs should be hauled and skidded. ’ ’ He nowhere alleges that it was a part of the agreement of the plaintiff to keep the skids clear of logs, nor does he attempt to aid this defective allegation by filing the contract or a copy of it with his pleading.
Clearly, according to all rules of pleading, he should have, in appropriate language, charged that his opponent, in the suit, had obligated himself to do certain things which he had failed to do. None of these inaccuracies were cured by the reply, nor were they cured by the verdict. Connecticut Fire Ins. Co. v. Moore, 154 Ky. 18.
The contract was introduced in evidence and there is no stipulation in it, in any way, binding the plaintiff to keep the skids of the defendant clear of logs. On the contrary, it shows that the defendant contracted, in consideration of the price agreed to be paid to him by the plaintiff, to haul and skid the logs. It may be true that
In regard to the $80.00 item alleged in the counterclaim, the language asserting it is also insufficient in that it fails to charge that during the time the teams of defendant were idle, he did not, or could not, procure other employment for the teams, which allegation is necessary under the well-established rules of pleading to enable him to recover for this.
Two hundred and fifty dollars of the total sum sued for is claimed by the plaintiff because it was compelled to, and did, expend that much more to get a part of the logs on the skids than it would have cost it if defendant had complied with his contract. There was proof upon this claim, and it was the duty of the court to have submitted it to the jury by an appropriate instruction. This, he failed to do, although plaintiff offered an instruction submitting it to the jury. If for no other reason, this error would compel us to reverse the judgment, because there can be no more prejudicial error committed by the trial court than a failure, upon request, to instruct the jury upon any matter presented' by the pleadings and where there is testimony to support it.
In regard to the item of $300.00 claimed by defendant for tile conversion of the tram-way, there is grave
Upon another trial, if the pleading should be amended so as to justify it, the court, in addition to the instruction submitting the question of conversion to the jury, should embody in that, or another, one, the question of the damages sustained by defendant through the use of the tram-way by the plaintiff, if any, as indicated herein.
Judgment reversed for proceedings consistent with this opinion.