Glassey v. Sligo Furnace Co.

BLAND, P. J. (after stating the facts). 1. Defendant demurred to plaintiff’s petition. The court overruled the demurrer. Defendant did not stand on its demurrer but answered. One of the assignments of error is, that the court should have sustained the demurrer. That an answer over waives a demurrer is too well settled to require the citation of authorities. 2. Defendant insists that the evidence fails to show a demand was made on it for the missing steers. The evidence is that plaintiff was notified by Cooksey to come to Sligo for his cattle, and in response to the notice be sent his agent to receive them, and when it was discovered fourteen head were missing, McRoberts, defendant’s superintendent,. promised plaintiff’s agent to have the cattle hunted up and to notify plaintiff when they were found. As they were never found McRoberts never gave the notice. This evidence, for all practical purposes, shows a demand for the cattle, and there was no necessity, under the circumstances, of making a formal demand to entitle plaintiff to maintain the suit. 3. Defendant’s construction of the contract is, that it did not obligate itself to keep its pasture fence in a reasonably safe condition to hold the cattle, that it only undertook to provide salt and water and a man to look after the cattle. Fencing is not mentioned in the written contract, but the pasture is, and it is in the contract that plaintiff’s cattle should be kept upon the twenty-seven-hundred-acre pasture. It was a matter of indifference to plaintiff whether the cattle were held in restraint on the pasture by a fence or by herders. Defendant, for a consideration, obligated itself to use reasonable care to confine the cattle to the pasture. It undertook to dis [31] charge this duty by watching and keeping up its fence around the pasture and, if on account of its negligence or that of its employee, in the discharge of this duty, the cattle escaped and were lost, it is unquestionably liable, and the trial court took this view of the contract, as is shown by its instructions to the jury. We think it was clearly right and correctly refused defendant’s instructions. 4. Respecting the value of the cattle, plaintiff’s evidence tends to prove they were worth from thirty to thirty-five dollars per head at the date of their delivery to defendant. Defendant objected to this evidence, on the ground “that under the terms of the contract the defendant is not liable for the escape or loss of any cattle thereunder, and for the further reason the testimony does not show any grounds for the liability at this time against the defendant for the loss of said cattle.” It now makes the objection, that the evidence was inadmissible for the reason the approved measure of damages in such cases is the value of the property at the time of the conversion. This ground of objection was not made on the trial, and cannot be made here for the first time. [Wibracht v. Annan, 89 Mo. App. 363; Caris v. Nimmons & Bennett, 92 Mo. App. 66; State v. Goddard, 162 Mo. 198, 62 S. W. 697; Kansas City v. Marsh Oil Co., 140 Mo. 458, 41 S. W. 943; Gayle v. Missouri Car & Foundry Co., 177 Mo. 427, 76 S. W. 987.] Discovering no reversible error in the record, the judgment is affirmed. All concur.