56 Mo. 322 | Mo. | 1874
delivered the opinion of the court.
This was an action on a contract, alleged to have been made by the defendant with plaintiff, to provide subsistence for eleven U. S. Army officers during the time they were to be conveyed on plaintiff’s steamboat up the Missouri river, from Omaha, Nebraska, to Fort Buford in Dacotah Territory. The defendant was a contractor under the United States Government, for the transportation of troops and supplies ; and the petition alleges that he made a contract with the plaintiff for subsisting said officers during the trip, at one dollar per day for each officer, and that the trip lasted for fifty-one days, from about the 1st of May, 1870, to the 20th of June, 1870, and that plaintiff complied with the terms of the contract.
The answer denied all the material allegations of the petition.
The trial of the case was submitted to the court, both par-ties waiving a jury.
Upon the trial, a witness named LaBarge testified to the terms of the contract as set forth in the petition, and stated that it was a verbal contract, which had been made subsequent to a written contract made by the defendant with the plaintiff, for the transportation of the troops, and that plaintiff fiilly performed the contract.
“Duplicate. Jos. LaBarge, Master,
H. K. Hazlett, Contractor.”
After this contract was read in evidence, the defendant moved the court to exclude the parol evidence that had been given by the witness, LaBarge. Tiie court overruled this motion, and defendant excepted. This was all the evidence given or offered by either party. The. court took the case under advisement, and afterward, while the case was being held under advisement, the defendant moved the court to open the case and grant a re-hearing, and supported this application by an affidavit of a witness, who swore that he had been deceived as to the time when the case was set for trial, and therefore, did not attend, and also made affidavit that there was no verbal contract made, as sworn to by the witness, LaBarge; that the written contract, above referred to, was all that ever was made between the parties. This motion was overruled by the court, and the defendant excepted. The court afterwards found the issue for the plaintiff, and assessed his damages at the amount claimed in the petition.
The defendant filed a motion for a new trial, upon the ground that he was surprised by the testimony of the witness,
It is not a simple case of-taking passage on a boat, which always,with cabin passengers, implies board as part of the contract for passage. The troops are transported as a body, including officers and men, and there is no more reason for inferring that the officers were to be subsisted than the men. The contract, therefore, for the subsistence of the officers was independent of, and not inconsistent with, the written contract for the transportation of the troops.