43 Mo. App. 653 | Mo. Ct. App. | 1891
Plaintiff Thomas sued the defendant for the reasonable value of labor performed in opening up, or stripping, a certain coalbed on the land of defendant. At the trial in the circuit court plaintiff had a verdict and judgment for $1,400, and defendant appealed. The petition is drawn in the usual form of a quantum meruit, alleging the incorporation of the defendant Land & Coal Company ; that said work was done at the instance and request of defendant, was of the reasonable value of some $4,608, giving credit for about $500, and asking judgment for a balance of $4,100. The answer admitted the incorporation of defendant, and interposed a general denial as to the other allegations of the petition.
I. We proceed to notice the points for reversal as set out in defendant’s brief. It is urged, as point one, that the court committed error in permitting plaintiff to introduce the articles of association and incorporation of the defendant, since the answer confessed the allegation of incorporation. At most, this could only be an error entirely harmless. We fail to see wherein the articles of association could be used to prejudice defendant’s rights before the jury. However, under the circumstances of this controversy as detailed in the evidence subsequently adduced, we are of the opinion that at least a portion of such articles of association was proper to be submitted to the jury. For example, article 7 marks out definitely the purposes, objects and business of said incorporation, and this action is to charge defendant on an implied contract within the range of such-business, to-wit, “the mining of coal” on the land of the corporation. The plaintiff’s work, too, was done, as he alleges, by request of Chas. Foster, the president and general manager of defendant, and it would seem entirely proper thus to look into the business in which the said incorporation was engaged, to thereby determine the limit of the powers of said president and general manager. It is clear he could only bind defendant
Nor .do we discover any substantial objection to the testimony of plaintiff Thomas, wherein he relates the negotiations with manager Foster, although Foster then told him that he (Foster) was not then ready to make a contract with plaintiff. It is well here to bear in mind the entire story as related by plaintiff Thomas, while on the stand as a witness. In effect he (Thomas ) testified, that Foster sent for the plaintiff ; that he went in pursuance of this request, and Foster then ■ told him that he (Foster) desired Thomas to do the work, but that negotiations were pending with a certain railroad corporation ( acting through Mr. Hood), whereby the coal mining was to be jointly engaged in by the two corporations ; that he (Foster) would see Hood in'a day or two and arrange with Hood to put the plaintiff to work.' Foster did see Hood, and Hood did set plaintiff to work on the grading and stripping the coal. The work was done under the directions of Hood as suggested'by Foster, and under the immediate supervision of one Beatty, defendant’s local agent. All this tended to show that plaintiff Thomas dug the coalpit, and stripped the earth therefrom, at the request of Foster, defendant’s managing officer.
II. In defendant’s second point, it is urged' that, by the instructions given, the consideration of defendant’s theory of defense was entirely excluded from the jury. On an examination of the court’s instructions we fail'to discover any such cause for complaint. Defendant’s version of the matter seems to be, that plaintiff Thomas went to work under a simple leasing of the coal land at one-half cent, per bushel to be paid the Coal Company with an agreement between plaintiff and Hood (representing the railroad company) to take the ■coal mined at four and one-half cents per bushel loaded on the cars, and that, as the railroad company failed to
“8. If the jury find that the Walnut Land & Coal Company only agreed to permit the plaintiff to mine coal on its land, and that he was to pay to it a royalty on the coal by him mined, then no failure on the part of the St. Louis & Emporia Railroad Company, or the Kansas & Missouri Improvement Company, to furnish cars to enable plaintiff to ship, sell and market his coal, will render the Walnut Land & Coal Company liable in this action.
“9. If the jury find from the evidence that Thomas went to work on the Walnut Land & Coal Company’s lands under an arrangement with C. Hood, by which he, Thomas, had a right to expect, and did expect, to be recompensed for his work and expense in opening the coalpit out of the sale of coal to the railroad company or other parties, and that said Thomas was prevented from selling and so reimbursing himself by the failure- of the railroad company to furnish cars, or build a - switch to the mine, then plaintiff cannot recover of the Walnut Land & Coal Company in this action, because of such failure of the railroad company to furnish cars or build a switch.”
III. Defendant’s counsel, in the third subdivision of points made, complain of the court’s instructions to the jury on the measure of damages. If defendant’s managing officers directed, or requested, the plaintiff Thomas to dig the coalpit and strip the said coalbeds, without anything said as to the price to be paid, and if plaintiff proceeded in the prosecution of such work and performed the same, then it is clear he was entitled to be compensated by the reasonable value of such work and labor done, not exceeding the amount claimed in the petition. And again, even though the request to
Other points ’(numbered 4, 5 and 6 in brief) are unworthy of mention in an opinion. Defendant’s position in each is not tenable. The cause was fairly tried, the evidence justifies the verdict, and the judgment is affirmed.
