Pope v. Ramsey , 78 Mo. App. 157 ( 1899 )

ELLISON, J.

Statement. In 1895 plaintiff was the owner of a large tract of timber land, the timber being suitable for making into railroad ties. In that year he contracted with one Temmen whereby he sold to him the ties at four cents per tie. Temmen advanced $300 in payment on the contract but after making a number of ties abandoned it. It was then agreed between plaintiff and defendants that the latter should take the place of Temmen in the contract aforesaid. Afterwards the timber on other lands was sold or contracted to the defendants. Defendants made a counterclaim in their answer. The judgment in the trial court was for plaintiff.

The principal, if not the only, contest in the trial court was as to what amount, if anything, did defendants owe the plaintiff, and this was made to depend on the number of ties taken from the land. Defendants objected to plaintiff’s mode of proof, contending that it was based on the opinion and conjecture of witnesses. This is the principal point for decision. Defendants say that plaintiff’s witnesses were allowed to give opinions as to the number of ties taken when they were not experts. In other words, that they were permitted to testify as experts when they were not qualified.

Evidence: number of ties on land: expert: best evidence. In our opinion the criticism made on the character of the testimony in plaintiff’s behalf is not borne out by the record. Opinions of witnesses were not asked or given on matters that had not come under their own observation. They were not asked to base an an opinion upon facts detailed by others. In the instances where some of them gave expression to the words “my opinion,” it merely meant the estimate or calculation of the witness as to the number of ties taken off the different tracts embraced within the whole tract from which defendants cut ties, after having gone over the land and made their count.

Neither do we think the testimony was conjectural in the sense that it was any more indefinite and uncertain than the very nature of the case made necessary. This will be better understood by a moment’s reflection on the character of the claim against defendants. The claim was not for articles of property which were or could be brought in view. The timber had been cut and manufactured into ties. The ties had been removed and the question was, how many ? It seems to us that the very best evidence, of which the case was susceptible, was introduced by plaintiff. Witnesses who had been over the land and taken note of the size of the stumps and tops or laps of the trees which had been cut were introduced by plaintiff. They were enabled to fix definitely the number of trees. They could also, with practical or substantial accuracy, fix upon the length of the bodv of a tree, it being the length of the distance between the stump and the top. Indeed it would not seem, to be a matter of much conjecture for a practical man of common sense and observation, measuring the diameter of a stump and the distance from it to the top, to say, with substantial accuracy, the number of ties, of the kind described in testimony made from it. The record shows that some of those witnesses measured off an acre of the best timber and an acre of the worst and calculated the number of ties the timber on each would make. Others estimated by including a third acre of the medium timber and made their calculation and average of the different tracts. The result of their count or estimate, with the manner of making it, was given to the jury. We can not see what else could have been done.

It is contended by defendant in this connection, that plaintiff as a witness was permitted to make an estimate partly on what had been sworn to by others in depositions. But on inquiry from the trial court the plaintiff replied that what he said was from his own observation. Plaintiff testified that he had been dealing in ties and tie timber; that he had been over the land three times and had made his calculations and estimate by counting and measuring stumps, the length of the trees, etc., on different parts of the different tracts. This witness and others testified how they made the calculations and how they obtained the data upon which to base them.

Verdict: passing on counterclaim. It is among defendants’ complaints set out in their brief that there was no finding on their counterclaim. The counterclaim consisted in an allegation of an advancement made to Temmen of $400 and that they had only taken ties amounting to $295.28 which left a balance in their favor of $104.72. The verdict of the jury was that they found the issues “for the plaintiff and against the defendant” and that plaintiff was entitled to recover “from defendants the sum of $631 as a balance due to plaintiff on his tie contract.” This, we think, was sufficient. Certainly there can be no doubt of what the jury meant to do. See Hockworth v. Zeitinger, 48 Mo. App. 32; Manufacturing Co. v. Severance, 51 Mo. App. 260; Taylor v. Short, 38 Mo. App. 21.

What has been said in relation to the evidence admitted over defendants’ objection disposes of the point made on refused instruction number 5.

Pleading: departure: verdict based on reply: practice. Complaint is made that the verdict is excessive and that it is based on the reply of plaintiff to defendants’ amended answer which is claimed to be a departure from' the petition. Conceding to defendants that after allowing a credit for money advanced by Temmens the verdict is for a greater sum than is justified by the petition disconnected from the reply, yet no point was made on the reply being a departure until the motion for a new trial. If the objection had been made at the proper time and the trial court had thought it well founded, plaintiff would have had an opportunity to amend his petition. Judge Robinson in speaking for the supreme court in Hill v. Drug Co., 140 Mo. 433, said: “It is the fixed policy of Missouri practice that parties litigant will be confined to the course of action they have adopted throughout the trial, even though that course be inconsistent with the one indicated by the pleadings on file.”

A full examination of the record has failed to disclose anything to justify us in overturning the judgment and hence it will be affirmed.

All concur.