Stockham v. Leach and Fruits , 210 Mo. App. 407 ( 1922 )

I concur in the opinion by my associate but herein more definitely express my views. The cause originated in replevin. Defendants answered claiming certain damages. The issues were submitted to a jury, and two verdicts were returned; one for plaintiffs, and one for defendants for $589.97 as damages. From the judgment for damages plaintiffs appealed, but defendants did not appeal from the judgment against them in replevin. The answer sets up a claim for damages for breach of contract. The reply undertakes to answer the defendants' demand for damages. Plaintiffs owned 400 acres of land in Carter county, and wanted the timber cut into lumber and ties. Defendants were saw mill men of some years experience. Plaintiffs on September 15, 1920, sold to defendants a second hand saw mill outfit, and some repairs additional for $1150. Defendants gave their note in payment. The note was dated September 15, and due one day after date. "At the same time, and as a part of said transaction," so say plaintiffs in their reply, a written contract was entered into between the parties which among others contained these provisions: "Parties of the second part agree to take said saw mill and to manufacture the timber of the said party of the first part into something like half and half ties and lumber at eight dollars per thousand feet and ten dollars per thousand feet for all inch lumber in excess of one-half. Party of the first part is to use due diligence and have put and placed on the skids at the mill logs at all times so as not to delay the operation of the mill unless hindered by the weather or other unavoidable conditions. Parties of the second part agree to cut said logs as fast as the weather and other unavoidable conditions will permit.

"Parties of the second part agree that the party of the first part shall hold back the sum of two dollas per thousand of all lumber cut until the party of the first part shall have received in full payment the sum of eleven hundred dollars and interest, the price of said mill furnished by the said party of the first part."

Two days after the execution of the note and contract which were executed September 15, defendants executed a chattel mortgage on the property bought from plaintiffs to secure the note. The mortgage is in the usual form and in addition it contains as a part of the condition clause, the clause above set out from the contract relative to holding back $2 on the thousand feet. It appears from the original bill of exceptions on file here that the mill had to be moved some distance from where it was when plaintiffs bought it, and it was not ready for operation till the latter part of October. Things did not go well, and by January 5, 1921, when this cause was instituted, defendants had not cut but 71,834 feet. The lumber cut amounted $574.67. Plaintiffs advanced to defendants during the time $514.64 to take care of the pay roll, and applied $60.03 on the note. When the mill was taken under the writ and turned over to plaintiffs they advertised it, and sold it for $500, and credited this amount on the note. Plaintiffs as would appear from their evidence relied on three grounds: (1) That the note was past due; (2) that the property had unreasonably depreciated in value; and (3) that defendants were not cutting lumber "as fast as the weather and other unavoidable conditions will permit." But they went to the jury omitting from their instructions specific reference to the theory that they could recover if the note was overdue. Nearly the whole of the evidence by plaintiffs was directed to the idea that defendants had not cut lumber as rapidly as they should. The evidence for defendants for the most part was along the same line, and to the effect that they had proceeded as rapidly as possible under the circumstances.

While the mortgage was not actually executed until two days after the note and contract it is plain, and both sides agree, that the whole affair was one and the same transaction; and each instrument so connected with the other that one could not be separated and have force of itself. It is also plain that plaintiffs cannot recover in replevin merely because the note was past due when the cause was commenced. The note was due before a tap was turned toward moving the mill. The contract provides that "party of the first part (plaintiffs) does buy and deliver to the said parties of the second part (defendants) one saw mill," etc., and that "parties of the second part agree to take said saw mill and to manufacture the timber" of plaintiffs into lumber. It further appears in the contract that plaintiffs agreed "to use due diligence and have put and placed on the skids at the mill logs at all times as not to delay the operation of the mill unless hindered by the weather or other unavoidable conditions." Plaintiffs agreed to buy the mill and sell it to defendants, and defendants agreed to take that mill and with that mill cut plaintiff's timber. If plaintiff could foreclose for nonpayment when the note fell due then the contract means nothing, except that defendants agreed to do the impossible as did plaintiffs because they agreed to furnish logs on the skids, etc. At the time the note fell due, and it was impossible to have been otherwise, there was neither mill, log nor skids in the sense in which these terms are used in the contract. Plaintiffs' manager who executed the papers for them testified that the mortgage was made in view of the contract. According to the theory that plaintiffs can recover because the note was overdue they could have proceeded to foreclose, before the ink was dry on the signatures to the mortgage. If the mortgage was "made in view of the contract," it was according to plaintiffs theory here, made to destroy and not to secure.

The mortgage, note, and contract constituted one contract, so say plaintiffs, the idea that plaintiffs could foreclose because the note was overdue is inconsistent with the terms of the contract, and if foreclosed on that ground could be had, then the contract as a whole gave plaintiffs an unusual and an unfair advantage. A. contract of doubtful meaning will be given a construction which makes it reasonable and fair between the parties to the end that one party will not have an unfair advantage over the other. [Mecartney v. Guardian Trust Co., 274 Mo. 224, 202 S.W. 1131.] There was incorporated into the mortgage a provision whereby plaintiffs were to retain two dollars on the thousand feet of lumber cut until the note for the mill was paid. This clause provided how the note might be paid. As I view this clause plaintiffs can foreclose by establishing either of these facts: (1) That plaintiffs were prohibited by defendants from holding back two dollars on the thousand; (2) that the mortgaged property had unreasonably depreciated in value. So far as appears here, the ground that plaintiffs were prohibited by defendants from holding back the two dollars on the thousand is somewhat dubious, because the whole of the proceeds was in plaintiffs' hands, and if they voluntarily released more than the contract provides they are in no position to complain. It appears also in the record that plaintiffs agreed outside the contract to furnish defendants money "until they got set up and until they got on their feet." The money advanced was on open account so plaintiff's manager testified, and that they applied all of the contract price of the lumber on this account, except the $60.03. Under the written contract plaintiffs could apply two dollars per thousand on the note, but instead they chose to apply practically all on the open account.

The verdicts in this cause mean nothing. The jury found for plaintiffs on the replevin wing and for defendants on their claim for damages. If the taking was wrongful then plaintiffs could not recover, and if not wrongful then defendants could not recover, therefore, the verdicts cannot in reason mean anything, and can have no force and validity under the facts here. The verdict returned for plaintiffs is as follows: "We the jury find the issues for the plaintiffs for the return of the saw mill all equipment thereto belonging." The one returned for defendants: "We the jury find the issues for the defendants and assess their damages at $589.97." This amount is the balance due on the note after allowing the two credits of $500 and $60.03. Plaintiffs designate defendants' answer as a counterclaim, and defendants refer to it as a counterclaim. There is no counterclaim in the case, and cannot be. The answer is not labeled as a counterclaim, but as an answer, and should have been an answer in replevin where the plaintiff had taken the property under the writ. But the answer is more in the nature of a count for damages based on breach of contract than anything else. Where defendant's answer in replevin makes no claim to the property, and no demand for the return, the only judgment that can be rendered in his favor is for a return of the property and any damages sustained from the wrongful taking. In such case a judgment for the value of the property cannot be given. [Cable v. Duke, 208 Mo. 557, 106 S.W. 643; Bank of Willow Springs v. Utterman, 184 S.W. (Mo. App.) 1171; Sikes v. Freman, 204 S.W. (Mo. App.) 948.] If the cause is retried the answer should be framed so as to comply with section 2082, Revised Statutes 1919, if defendants desire to avail themselves of the remedies there provided. The verdict for plaintiffs is not in proper form where possession has been taken under the writ (Barnes v. Plessner, 137 Mo. App. 571, 119 S.W. 457; Rogers v. Davis, 194 Mo. App. 378, 184 S.W. 151), but we merely mention this as another irregularity in this cause.

In Shaw v. Richards, 236 S.W. 405, we held that a verdict, on all fours in inconsistency with the verdicts here, meant nothing, and remanded the cause on that ground.