133 Mo. App. 122 | Mo. Ct. App. | 1908
This is an action for damages alleged to have accrued to the plaintiffs because of the defendant’s breach of an oral contract providing for the construction of an embankment for a railroad. The plaintiffs recovered and the defendant appeals. The defendant is a railroad corporation existing under the laws of this State and owns and operates a short line of railroad in Pemiscot county in connection with its sawmills, for the purpose of conveying timber thereto. Henry Pingle was one of the directors of defendant railroad and its general superintendent. The defendant desired to extend its road a short distance and Mr. Pingle was clothed with authority to negotiate a contract therefor in its behalf. There are two plaintiffs to the action, Tucker* and King. The original contract declared upon in the petition, however, is alleged to have been entered into by the plaintiff Tucker and the defendant’s superintendent, Mr. Pingle. King subsequently came into the case as a partner of Tucker by the consent of the defendant’s civil engineer, Mr. Randolph. As stated, the petition declares upon an oral contract and its breach. It is alleged in the petition substantially that the plaintiffs and. defendant entered into an oral contract on December 27, 1903, wherein the plaintiffs agreed to clear the right of way and construct a roadbed for the defendant’s railroad from the town of
The testimony on the part of the plaintiffs tended to prove that the plaintiff Tucker, a railroad contractor, had a conversation Avith defendant’s superintendent, Pingle, on December 27, 1903, at the depot at Pascóla Avhile Mr. Pingle Avas awaiting a train. The entire conversation consumed about twenty minutes time. Tucker insists that he proposed to Pingle to clear the right of Avay, construct a roadbed, etc., at the price of twenty-five cents per cubic yard, subject to ten per cent shrinkage for team work and twenty per cent shrinkage for wheelbarrow and shovel work, and otherwise as declared in the petition; and further, that he Avould cut all merchantable timber on the right of way into saw stock at
“Deering, Mo., Jan. 7, 1904.
“Agreement between the Deering Southwestern Railway and Wm. Tucker and D. King, to be knoxvn as Tucker & King.
“Whereas, it is agreed that in consideration of the sum of tAventy-five (25) cents per cubic yard, to be paid by the said Deering SouthAvestern Raihvay, the said Tucker and King shall clear the right of Avay and build' the roadbed for said road, according* to grade and specifications furnished by the engineer. All stations to be completed consecutively, also shall receive the sum of fifty (50) cents per M. for all timber cut as saw stock and shall be merchantable timber, according to the orders of the timber foreman. This work shall be subject to a shrinkage discount of 10 per cent for team work and 20 per cent for barroxv or shovel Avork, and shall be inspected and paid for as each station is completed as near as practicable.
“This agreement subject to the approval of the superintendent.
“Deering Southwestern Ry.,
“By E. C. Randolph, Eng.
“It is further understood and agreed that the men noAV engaged in station work shall continue at same as they may desire at the price of twenty (20) cents per cubic yard, and shall Avork under the supervision and contract of said Tucker & King, avIxo shall furnish them station AArork on reasonable grounds.
“Signed:
“E. C. Randolph,
“Wm. Tucker,
“D. King."
The defendant sought to have referred to the jury its theory of the case to the effect that the two conversations had with Superintendent Pingle by Tucker amounted to no more than preliminary negotiations, to be subsequently incorporated in Avriting by Randolph and the plaintiffs, subject to Pingle’s approval. To that end, it requested and the court refused to instruct in effect that if plaintiffs commenced the work for defendant under a written memorandum dated January 7, 1905, and not under an oral agreement and continued to work under the Avritten memorandum until notified to quit on account of the disapproval of its terms by defendant’s superintendent, then plaintiffs have failed to make out a case and the verdict should be for the defendant. This instruction should have been given, for indeed, if plaintiffs refused to enter upon the work at all, as testified by plaintiff King, until they had a writ
In proving damages, plaintiffs’ counsel asked plaintiff King the following question: “State whether or not you went to great expense in preparing and getting down and beginning this work.” Over competent objection and exception, plaintiff answered: “I think the books wall show between $600 and $700 expenses getting in there and beginning; supplies, tools, stuff, camp outfit, taken in there.” The plaintiffs were professional railroad contractors. Their “tools, stuff, camp outfit, etc.,” were of course valuable to them in the prosecution of the work for the defendant or any other railroad on which they might be employed and remained of value to them, notwithstanding the breach of the contract declared upon. Any element of damage predicated upon these items, “tools, stuff, camp outfit, etc.,” was certainly remote and not allowable as a natural and necessary result of the breach of the contract complained of. [Applegate v. Franklin, 109 Mo. App. 293, 304, 84 S. W. 347.] The damages accruing to the plaintiff on
The verdict was for $2,000, in which nine of the jurors only concurred. The admission of the evidence complained of no doubt materially contributed’ to the result. The judgment should be reversed and the cause remanded. It is so ordered.