105 Mo. App. 421 | Mo. Ct. App. | 1904
Plaintiff sued for the price of timber on 320 acres of land in New Madrid coimty. His peti tion stated that on February 5,1898, he and the defendant entered into a verbal contract for the sale by him and the purchase by the defendant of the timber on certain tracts containing a stated number of acres, the purchase price being $1,000; that the defendant cut and removed the timber and converted it to 'his own use, but refused to pay for it; that the plaintiff had complied with his contract of sale and the defendant ought, in equity and good conscience, to pay the agreed price. The petition was crudely drawn, departed from the cause of action stated in two petitions previously filed and substituted a new cause of action; but the judgment-should not be reversed on that account, as the objection was waived by the defendant pleading to the last petition and going to trial. Liese v. Meyer, 143 Mo. 547; Bernard, Admr., v. Mott, 89 Mo. App. 403. It is true an objection was made to the reception of any- evidence on the score that the last petition stated a new cause of action; but the proper way to preserve the objection was to stand on a motion to strike out the petition. Previous citations; Scoville v. Glasner, 79 Mo. 449. The objec
The answer denied that the contract for the sale of the timber was .verbal and set up a written instrument dated February 7, 1898, and signed by the plaintiff, as constituting an earlier contract for the sale of the timber than the one finally executed. Said instrument described more than 1,000 acres of land and recited that plaintiff agreed to sell the timber right on it to several persons, among them the defendant, for a first mortgage bond of $1,000, to be issued by a railroad company that intended to build a railroad in New Madrid county. The instrument gave the vendee seven years after the expected railroad was open for business, to remove the timber. The answer further stated that an examination of the plaintiff’s title to said 1,000 acres of land disclosed that he owned only a part of it and in consequence said earlier contract was rescinded by mutual consent, and afterwards, on January 13, 1899, another instrument was executed by the plaintiff, selling the timber on all the land which he owned to the defendant; the last contract being in abrogation of the one of February 7, 1898. The document of January 13, 1899, was copied in the answer and is of the following tenor:
“New Madrid, Missouri, January 13, 1899.
‘ ‘ To whom it may concernThis is to certify that I have this day sold to S. S. Barnes, his administrators, heirs or assigns, all the timber that is on the lands herein described and give this, my lease to said lands for the term of seven years from this date; that is to say:
“The southeast quarter of section 10,160 acres, and the south half of southeast quarter, and southeast quarter of southwest quarter, section 11, 120 acres, and the southeast quarter of northeast quarter of section 22, 40 acres, in all three hundred and twenty acres, in town*425 ship 22, range 13, in the connty of New Madrid, State of Missouri.
“I have received in full consideration of the above lease the sum of three hundred and twenty-five dollars.
“(Signed) • A. R. Phillips.”
The answer stated that the plaintiff had been fully paid by the defendant for the timber purchased by him.
A replication was filed which admitted every averment of the answer, except that the defendant had paid for the timber, which averment was denied.
It is said that, besides the departure of the last petition from the cause of. action stated in the previous ones, the replication departed from the case stated in the last petition, and the plaintiff recovered on a contract different from the one declared on in it; that he declared on a verbal contract made in 1898; admitted in his reply that said contract had been abrogated by the written one of January 13, 1899, and obtained judgment on a finding that the timber was sold but had not been paid for. This is argued to be the result of the admission in the replication of everything averred in the answer except payment, as the answer averred the abrogation of the agreement of February, 1898, by the one of J anuary, 1899. No doubt there was a diversion of the issues as tendered by the petition; but who did it? The defendant himself in his answer. While a general denial would have been sufficient to put in issue the contract declared on by the plaintiff, defendant went further and tendered new issues. As the replication traversed the averment of payment and admitted all the other averments of the answer, no issue was joined but the one of payment. Now the defendant, besides unnecessarily tendering new issues, never raised the objection that the allegations of the last petition were abandoned by the reply, and that in the reply the plaintiff sought judgment on a different case from the' one set up in the petition. Both parties went to trial uncomplainingly on
The argument is pressed on our attention that the replication confessed plaintiff had been paid for his timber; but instead of making such an admission, the replication denied payment had been received. That pleading runs in this wise: “Plaintiff, for replication, admits each and every fact set up in the answer, except that the timber has been paid for, which he expressly denies.” The defendant’s counsel contends the effect of the replication is to admit the timber was sold by the contract of January 13, 1899; and this is true.
The defendant admitted getting the timber, but pleaded payment for it, and he had the burden of proof on the issue. Griffith v. Creighton, 61 Mo. App. 1.
There is no other point in the briefs that requires attention; so the judgment is affirmed.