American Hardwood Lumber Co. v. Nickey , 89 Mo. App. 270 ( 1901 )

BLAND, P. J.

After alleging the substitution of the contract of September 10, 1895, the deposit of the fifteen hundred dollars by Short & Kilgore, with Nickey as provided for by the contract, the petition alleges: “That said Short & Kil,'gore also fully performed said contract upon their part in all other respects until on or about June 15, 1896, when said Nickey refused to further fulfill said contract on his part, and refused to permit said Short & Kilgore to complete the same upon their part, although said Short & Kilgore were at said time ready and willing so to do. That said Short & Kilgore have paid said Nickey in full for all said timber by him to them delivered under said contract and no portion of said $1,500 was needed for or applied to the payment of said timber. That upon the wrongful determination of said contract by said Nickey as aforesaid said Short & Kilgore became entitled to have said fifteen hundred dollars, so deposited with said Nickey as aforesaid, returned to them by said Nickey, and did demand of said Nickey the return of the same, but said Nickey failed and refused and has ever since failed and refused to pay said Short & Kilgore said fifteen hundred dollars or any part thereof.” Alleges also an assignment by Short & Kilgore to plaintiff of their' right, title and interest in and to the said fifteen hundred dollars and prays judgment therefor with legal interest.

The answer alleges that the contract of September 10, 1895, was made by Short & Kilgore for the benefit of plaintiff; that immediately after its execution it was assigned to plaintiff by Short & Kilgore; admitted the reception of fifteen hundred dollars by defendant, but denies that it was paid as an advancement on timber to be furnished by defendant; but that under the contract it was understood and expressly agreed that it should be held by defendant as security for the faithful performance of the contract by the plaintiff Short & Kilgore and for stipulated damages for its breach, denies that on June 15, 1896, or at any other date, defendant failed and refused to perform the contract on his part or that he refused to permit Short & Kilgore to perform; alleges a fraudulent transfer of their property by Short & Kilgore to plaintiff on April 23, 1896, for the purpose of defrauding defendant; sets forth the attachment suit brought by defendant against Short & Kilgore and the settlement of that suit; sets forth the suit which culminated in a judgment in the Oregon Circuit Court and pleads the judgment then rendered as a bar to plaintiff’s right of recovery and further pleads the adjustment of the Cottrell slander suit as a full an’d complete settlement of all matters of difference between plaintiff and defendant and denies all other allegations.

The replication denied the new matter set forth in the answer and pleaded the Oregon county judgment as an adjudication of the fact, that the defendant by the contract of June 15, 1896, had abandoned the contract of September 10, 1895, and pleaded the Oregon judgment as a bar to defendant’s right to retain the fifteen hundred dollars as a forfeiture or as stipulated damages. At the close of all the evidence the court instructed the jury to find for plaintiff for fifteen hundred dollars, with legal interest.

The petition counts on a breach of the contract of September 10, 1895, by defendant, and alleges the date of the breach to have occurred on June 15, 1896 — the date of the execution of the substitutional contract between plaintiff and defendant. The evidence of plaintiff does not show conclusively that defendant broke the contract prior to June 15, 1896. On the contrary, it is presumptively shown, by the attachment suit and the settlement of that suit by the payment to defendant of money for logs furnished Short & Kilgore, and by the new contract entered into by and between plaintiff and defendant for the further operation of defendant’s mill, etc. (presumably by the consent of Short & Kilgore), that they (Short & Kilgore) had failed to keep and perform the contract and were for some reason unable to keep and perform it for the future and surrendered their interest in it and agreed that it should be terminated. The only thing that stands in the way of this inference is, the other inference which is fairly deducible from the connection of the lumber company with the contract from its very inception to its termination, viz., that it was the real party in interest in the contract from the start and that Short & Kilgore were but dummies put forward to shield the lumber company in the event a loss should be sustained in the purchase of timber and the operation of the mill. Woeheide, the manager of plaintiff, however, swore that the assignment of the contract by Short & Kilgore on the day of its execution was not accepted by the plaintiff. Be this as i£ may, the fact remains that the defendant is entitled to retain the fifteen hundred dollars, if prior to June 15, .1896, Short & Kilgore failed to keep and perform their part of the contract.

On the trial, the plaintiff relied on the Oregon county judgment as furnishing a bar to the defendant’s right to retain the fifteen hundred dollars as stipulated damages for a breach of the contract by Short & Kilgore, and the learned trial judge seemed to have fallen in with this view of the force and effect of the judgment and cut off the defense set forth in the answer by excluding testimony tending to establish it.. If this ruling of the trial judge is a correct interpretation of the force and effect of the judgment, the case was properly tried and the judgment should be affirmed. But we are unable to agree that the Oregon county judgment is a bar to the defendant’s right to claim and hold the fifteen hundred dollars as stipulated damages under the September 10 contract. There was no trial of the suit in Oregon county, no evidence was heard, the judgment was rendered on the motion of the defendants in the suit on the pleadings. We must, therefore, look to the pleadings and the motion for judgment to ascertain what was decided. The petition, for cause of action, alleged that the defendants had not received and paid for logs as per contract, by reason of which the plaintiff (Niekey) had lost a large sum of money as profits that would have accrued to him had the contract been kept and performed by defendants.

The answer alleged the deposit of the fifteen hundred dollars by Short & Kilgore with Niekey and the retaining of that sum by him as security for the performance of the contract by Short & Kilgore, and that if they "failed to keep and perform their part of the contract, that the sum should be forfeited; that it was the intention of the parties to said contract that the said sum of fifteen hundred dollars should be taken as liquidated damages for a breach of the contract by Short & Kilgore and that plaintiff by retaining the same had released and discharged all pretended claims for damages set out in his petition, and alleges an abandonment of the contract by the substitution of the contract of June 15, 1896.

The replication denied that the original contract was abrogated by tbe contract of June 15; alleged a contract made on January 21, 1897, between himself and the American Hardwood Lumber Company, whereby the contract of June 15 was annulled and the lumber company was to hold the leased premises under the contract of September 10, 1895, and containing a stipulation that none of the breaches of the contract of September 10, should be waived by the new contract. On the pleadings the lumber company moved for judgment on two grounds. Eirst, that the replication admits the execution of the contract of June 15, 1896, pleaded as a substitute for the contract of September 10, 1895, and did not state facts sufficient to avoid it. Second, that the replication set up the contract of January 21, 1897, relating to the same subject-matter and plaintiff (Niekey) can not recover on the contract of September 10, 1895. The judgment recites that the motion was taken up, argued a'nd sustained. The judgment is predicated on one or both of the grounds set forth in the motion, for it is so expressed by the court in its judgment. Hnder the maxim applicable to the construction of written instruments that “The express mention of one thing implies the exclusion of another,” we are bound to exclude from consideration any other ground as having moved the court to render its judgment than those mentioned in the motion, though other grounds in support of tbe judgment may be found in the pleadings. Although the fifteen hundred dollars is pleaded as liquidated damages by the defendant in the suit and denied by Niekey, yet this issue was not brought to the attention of the court by the motion for judgment, and was not, therefore, adjudicated, and the rights of the respective parties as to this money is in nowise affected by the judgment, except in so far as it may be controlled or affected by the fact that the judgment did adjudge that the contract of September 10 was superseded by one of June 15. Nothing is adjudicated that has not passed under the review of the court having jurisdiction of the subject-matter and the parties to the'suit. Nelson v. Barnett, 123 Mo. loc. cit. 571, and cases cited; Clemens v. Murphy, 40 Mo. 121; Spurlach v. Railroad, 76 Mo. 67; Tutt v. Price, 7 Mo. App. 194; State ex rel. v. James, 82 Mo. 509; Dawson v. Quiller, 61 Mo. App. 672; Richardson v. Adams, 4 Mo. 311; Dickey v. Heim, 48 Mo. App. 114.

According to the averments in the answer of the lumber company, in the Oregon county suit, the fifteen hundred dollars were given into the hands of Nickey as a forfeit, should Short & Kilgore fail to live up to the contract, and with the understanding that it should be retained as stipulated damages should they fail to keep and perform the contract. The answer of Nickey in the present suit alleges that in April, 1896, Short & Kilgore violated the contract by making a fraudulent conveyance of all their assets to the lumber' company and that on June 4, following, he instituted an attachment suit against them to recover for logs he had delivered under the contract of September 10. By its answer in the Oregon county case, the plaintiff herein alleged that the fifteen hundred dollars were deposited as a forfeit and as and for stipulated damages should Short & Kilgore fail to carry out the contract. We think this a correct construction of the contract, at any rate, the plaintiff is estopped to assert the contrary by its answer in the Oregon county case (Lilly v. Menke, 143 Mo. l. c. 146), and if it can be shown that prior to the execution of the contract of June 15, they did fail to keep and perform their contract of September 10, the defendant is entitled to retain the money. The petition alleges that Short & Kilgore fully performed the contract on their part until June 15, 1896, when defendant refused to further fulfill the contract on his part. By the Oregon county judgment, the plaintiff established the fact that the September contract was abandoned by the defendant, bnt it did not by any conclusive evidence prove the other allegation of the petition, that Short & Kilgore had, prior to that date, kept and performed the contract and that the fifteen 'hundred dollars had not become forfeited to defendant. The answer put in issue both of these averments, and it devolved on plaintiff to prove both to the reasonable satisfaction of the jury to entitle it to recover. Under the pleadings the defendant had the undoubted right to introduce evidence to prove that Short & Kilgore had violated their contract prior to June 15, 1896. After the Oregon county judgment was read in evidence, the only issue left to be submitted to the jury was whether or not Short & Kilgore had kept and performed the contract prior and up to June 15, 1896, when the substitutional contract was made. If they did, plaintiff is entitled to recover ; if they did not, Nickey is entitled to retain the money as liquidated damages for the violation of the contract by Short & Kilgore. The settlement made in January, 1897, of the slander suit, seems to be a one-sided affair and all on the side and for the protection of the plaintiff. At any rate, it has no bearing whatever on the rights of the parties to the fifteen hundred dollars in controversy in this suit.

Eor the reason that the suit was tried on an erroneous construction of the scope and effect of the Oregon county judgment, the judgment is reversed and the cause remanded.

All concur.