Rhodes v. Holladay-Klotz Land & Lumber Co.

105 Mo. App. 279 | Mo. Ct. App. | 1904

BLAND, P. J.

(after stating the facts as above).

1. Plaintiff offered evidence in chief tending to prove that the defective and unsalable condition of the 800,000 feet of lumber resulted from the unsound and defective logs, furnished him by defendant, out of which the lumber was sawed. This character of evidence was objected to by defendant on the ground that there was no averment in the petition that there were any defects in the timber.

The answer alleged that the defects in the lumber left over was in manufacturing of it by defendant.

The reply tacitly admitted that the lumber was defective. To avoid the force of this admission, it is alleged that the defects were to be ascribed to the rotten and defective character of the timber furnished by the defendant out of which it was sawed. In this condition of the pleadings, we think, that it was not only proper, but that the burden was on plaintiff to prove to the reasonable satisfaction of the jury that the defective and unmerchantable quality of the lumber was 'the fault of the defendant, in furnishing rotten or doty timber, and that the court properly admitted testimony in chief to locate the responsibility for the defective lumber.

2. It is contended by defendant that the defendant, under the contract, was constituted the judge as to the quality of the timber to be supplied plaintiff for manufacturing lumber, and when prices for lumber were satisfactory, and that it is only liable for an intentional violation of the contract.

The language of the contract, in respect to furnishing logs, is, “The said party of the first part further agrees to furnish and supply oak saw logs, delivered at Skidway at said mill, in numbers to be limited by the reasonable convenience of the said party of the first part, and make suck deliveries by the sales of suck oak lumber that the said party of the first part may be able to make from time to time. It being understood that the said party of the first part will endeavor to supply logs sufficient to enable said sawmill of the party of the second part to run all the time and cut suck lumber as said party of the first part can sell each month; said party of the first part agrees to log said mill to its capacity to cut, limited only by the amount of lumber said party of the first part shall be able to sell at satisfactory prices.”

The purpose of the parties was to manufacture and sell marketable lumber. To furnish saw logs for this purpose would require such logs as could be converted into merchantable lumber. The quality of the logs was, therefore, not left to the whim, or caprice of the defendant, but it was obliged to furnish saw logs from which the plaintiff could saw merchantable lumber.

What is meant by the phrase, ‘ ‘ satisfactory price, ’ ’ in the contract should receive a reasonable construction; a price should be construed satisfactory which would yield the defendant a reasonable profit over and above the gross cost of the lumber to it, plus the reasonable value of the timber and the cost of making sales of the lumber.

A fair construction of the contract would require the defendant to furnish timber from which could be manufactured salable lumber, to make reasonable efforts to put sound and salable lumber on the market and, if by such effort sales at reasonable profits could be made, to keep plaintiff’s mill continuously running, plaintiff was obliged to furnish sufficient saw logs to keep it going. On the other hand, plaintiff was obliged, when furnished with sound timber, to saw it in a workmanlike manner and of such dimensions as required by. the defendant.

The instructions given substantially adopted this view of the contract and we think fairly submitted the issues to the jury.

The evidence was conflicting and much of it is contradictory, but that plaintiff made out a prima facie case, we have no doubt and he was entitled to have his theory of the case submitted to the jury on the evidence adduced by him.

With the weight of the evidence, we are not concerned; to weigh it and to make proper deductions therefrom was the peculiar and exclusive province of the jury.

The refused instruction asked by the defendant put a construction on the contract opposed to the views, herein expressed and we think was properly refused by the trial court.

3. The first instruction for plaintiff authorized a recovery, if defendant did not sell lumber for the reason that it made no honest effort to do so and, second, if it failed to sell lumber because it furnished an inferior and defective quality of logs. The second breach of the contract is not alleged in the petition. For this reason it is contended by defendant that plaintiff was allowed to recover upon a cause of action not alleged in the petition.

As an excuse for not selling lumber, the answer set up that it was badly manufactured. The reply denied that the lumber was badly sawed, but tacitly admitted that much of it was unsalable and alleged as a reason for its unmerchantable quality, that the logs furnished by defendant and the timber from which it was sawed was doty and rotten. This allegation of the reply shifted the responsibility for the unmerchantable lumber from plaintiff to defendant. It also contains an allegation of a breach of the contract not alleged in the petition, to-wit, the furnishing of doty or rotten logs by defendant from which merchantable lumber could not be sawed. It does not contradict any of the allegations of the petition, nor is it inconsistent with the petition, nor nowhere evinces a purpose on the part of the pleader to abandon the breach of the contract alleged in the petition as constituting plaintiff’s cause of action. It could not, therefore, be stricken out on the ground that it was a departure from the petition. Cravens v. Gillilan, 73 Mo. l. c. 528; Chemical Co. v. Lackawanna Line, 70 Mo. App. 274. Nor does it contain redundant matter, but contains new matter not inconsistent with the petition, constituing a defense to the counterclaim set up in the answer and was therefore allowable under section 607, Revised Statutes 1899. Coombs Com. Co. v. Block, 130 Mo. 668. But the reply was not confined at the trial to the legitimate functions of a reply, but was used, as is shown by instructions numbers 1 and 2 given for the plaintiff, in aid of the petition by authorizing a recovery for a breach of contract in furnishing of rotten or doty logs by the defendant. Under the statute (sec. 607, supra) the office of a reply is to put in issue new matter alleged in the answer by a general or special denial thereof, and the pleader may allege in the reply any “new matter, not inconsistent with the petition, constituting a defense to the new matter in the answer. ” But a reply can not be used in aid of the petition by introducing for the first time a new cause of action or an additional cause of action, nor to engraft on the petition a material allegation omitted therefrom. McMahill v. Jenkins, 69 Mo. App. l. c. 281; Crawford v. Spencer, 36 Mo. App. 78; Pattison on Missouri Pleading, secs. 676, 763, 880. And it was error to instruct the jury, as was done in the first instruction given for the plaintiff, that the furnishing of defective logs by defendant was a breach of the contract entitling plaintiff to recover.

4. The second instruction for plaintiff, in respect to the measure of damages, is also erroneous. The measure of damages in actions for breach of contract is a matter of law for the court to declare in its instructions to the jury, not a matter for the jury to guess at or speculate upon. 1 Sedgwick on Damages (8 Ed.), sec. 31; Morrison v. Yancey, 23 Mo. App. 670; Williams v. Iron Company, 30 Mo. App. 662; Wilburn v. Railway, 36 Mo. App. 203; Flynt v. Railway, 38 Mo. App. 94. Compensation for the actual loss resulting* from the breach is what the law aims to give. Albers v. Merchants’ Exchange, 138 Mo. 140; Chalice v. Witte, 81 Mo. App. 84. The compensation on the first count of the petition would be plaintiff’s loss of the net profits he would have realized from the operation of his mill if he had been supplied with saw logs according to the terms of the contract. American Pub. & Engr. Co. v. Walker, 87 Mo. App. 503. For the errors herein noted the judgment is reversed and the cause remanded.

Reyburn and Goode, JJ., concur.