Dennis v. Crooks

Hall, J. Two objections are urged against the instruction, given for the plaintiff, which has been set out in the foregoing statement. First, because the court submitted a question of law to the jury by telling them to find for plaintiff if they found that the defendant without “ any just catóse served notice on plaintiff to stop cutting and hauling,” etc. Second, because by telling the jury, if they found for plaintiff, to find “for plaintiff in the market value of all the timber cut and uncut then remaining on said land,” the court in [536] stracted the jury to find for plaintiff t;the market value” of the timber which he had, according to his own statement, already sold to Thomas and William Cooksey. The questions as to what the contract was, and as to whether the plaintiff had violated his contract were for the jury to pass upon. There was a conflict of evidence as to both of these questions. The court submitted no question of law by submitting to the jury the question whether or not the defendant “ without just cause ” gave the notice to plaintiff to stop, etc. The court thereby submitted simply a question of fact to the jury. The defendant only claimed the right to give said notice by virtue of the contract being as he stated it to be and of a violation of its terms by plaintiff in the manner of doing the work. The question of fact submitted was, was the ■contract as stated by defendant, and if so had the plaintiff violated the terms of said contract % The j ary must have so understood the instruction from the language of the instruction itself; and this meaning was but made clearer, if possible, by the other instructions given in the case. The first objection does not seem to us to be tenable. But the second objection is well made. The plaintiff had admitted to having sold a certain quantity of timber to the two Cooksey’s, a portion of which he stated was stillupon the land. It was, therefore, error to instruct the jury, if they found for the plaintiff, to find the value of that timber. This also applies to any timber then on the land which the plaintiff might have sold theretofore to Philip Robinson. Prom a judgment rendered in the justice’s court in the suit brought by the Cooksey’s against this defendant to recover the value of the timber sold to them by plaintiff and then remaining on the land, an appeal had been taken to the circuit court. The judgment was not an estoppel as against the very parties to that suit, because the suit was for trial de novo in the circuit court. [537] By a prosecution of the appeal the judgment was as if it had never been; it was final and binding upon no one. Turner v. Northcutt, 9 Mo. App. 251. And, of course, the pendency of that suit did not prevent the plaintiff from bringing this action. This was not a case of the assignment of a part of a cause of action or of the splitting of a cause of action. Bank v. Noonan, 14 Mo. App. 246. The plaintiff sold to the Cooksey’s a part of his timber. They were the proper parties to sue for the value of that which they bought, if it was converted by the defendant; the plaintiff was the proper party to sue for the value of that which he kept. The court properly ■excluded all evidence touching the suit then pending in the circuit court, which the Cooksey’s had brought. For the error mentioned the judgment is reversed and the cause remanded. All concur.