Alfter v. Hammitt

Smith, P. J. — This was a suit to recover damages for the breach of a contract for the sale of railway tie timber. The plaintiff had judgment and the defendants have appealed. The first ground upon which the appealing defendants assail the judgment is that as the time allowed by the contract in which defendants had the right to make ties out of the timber on plaintiff’s land, had not expired at the time of the commencement of the suit, therefore no cause of action for non-performance had then accrued. The original petition is not contained in the defendant’s abstract, so that it ’ is impossible for us to tell what facts were therein stated and relied on as constituting a cause of action on the contract, nor does it anywhere appear at what particlar date the suit was commenced. We cannot say from an examination of the plaintiff’s amended and supplemental petition which is contained in the defendant’s abstract of the record that it states a cause of action which did not exist at the commencement of the suit; for as we have already stated we have no means of ascertaining when that was. For aught that appears by the record the suit may not have been commenced until after the expiration of the timber contract. But if the suit was brought before the expiration of the contract as contended by defendants we cannot infer that it stated no breach of the contract for which dam [308] ages were recoverable, but the fact that plaintiff filed an amended and supplemental petition rather justifies the inference that it did state facts constituting a cause of action on the contract, because such amended and supplemental petition could only state such facts as had transpired after the commencement of the suit as strengthened or reinforced the original cause of action. Nave v. Adams, 107 Mo. 421. We must, assume that the plaintiff’s original petition stated a cause of action on the contract for which damages were recoverable and that the cause of action Ayas complete when the suit was brought. The amended and supplemental petition doubtless stated no more than such additional acts of nonperformance of the conditions of the contract, which increased the damages as had transpired between the commencement of the suit and the filing of such amended and supplemental petition. The cause of action being complete when the suit was brought and the continuing damages flowing from the one cause of action, according to our ruling in Cook v. Redman, 45 Mo. App. 397, could be recovered in one suit only. The meaning of this is as we think'that when other and additional actionable facts of the same kind and belonging to the same group and cognate to those constituting the cause of action stated in the original petition have come into existence since the commencement of the suit they may be brought on the record by an amended and supplemented petition, and we may infer that nothing more than this was accomplished by the amended and supplemental petition in this case. We cannot say as defendants insist we shall that there was no evidence of the quantity of timber ..eft on the ground by defendants sufficient to support the verdict. The evidence of no less than three witnesses [309] tended to show that they went upon the land after the expiration of the defendant’s contract and made a careful estimate of the number of ties that could have been made out of the timber left by the defendants. The evidence placed before the jury facts and circumstances which- had an inevitable tendency to show damages and which was sufficient we think to enable them to make an intelligent and probable estimate of the amount of the same. This was all that is required by the law. 1 Sedgwick on Damages, sec. 170; Eyerman v. Sheehan, 52 Mo. 221. The land was fully described in the contract and the plaintiff furnished defendants all that they required. The boundary lines of the land were shown the defendants before the contract was entered into, so that there was no element of fraud or misrepresentation in the transaction. In the light of the circumstances under which the contract was made as shown by the evidence, the slough running up to the land from the river was regarded as the river or a branch or arm of it. The defendants were fully advised of the situation of the land as respected the river at the time they made the contract and so have nothing to complain of on that account. The defendants finally contend that there was no evidence introduced which tended to prove the value of-the timber left on the land, and therefore it was error for the court to instruct the jury as it did, that the measure of damages was the difference between the contract price an d the value of the timber so left. When the plaintiff adduced evidence tending to show that the defendants had left a certain quantity of the timber on the land which they had bound themselves under the contract to make into ties and to pay a certain price per tie therefor, the plaintiff had made out his prima facie case. From the damages which the plaintiff would [310] thus be entitled should be subtracted the value, if any, of the timber left on the land. The burden of showing this was properly on the.defendants. Pond v. Wyman, 15 Mo. 175. If neither the evidence of the plaintiff nor that of the defendants showed, that the timber was of any value the defendants were not hurt by the instruction. It might have been harmful to plaintiff but he is not complaining., It seems there, w,as no evidence introduced, to justify the giving of that part of the instruction in respect to the reduction of the plaintiff’s damages, yet this error was harmless and for which we. cannot disturb the judgment. . With the concurrence of the other judges the judgment' will be affirmed.