Thomas v. Bambrick Bros. Construction Co.

ALLEN, J.

On November 27,1905, plaintiff made a written proposal to defendant corporation to strip and remove the clay from defendant’s qnarry in the city of St. Louis at the price of twenty cents per cubic yard, which, proposal was accepted by defendant corporation by its written acceptance affixed thereto. Because of the nature of the assignments of error before us, the contents of the writing need not be fully stated.

The petition pleads the substance of the contract sued upon, to which is added, as a separate paragraph of the petition, the following allegation, viz.:

“It was further agreed by and between the parties that the number of cubic yards of clay to be removed was thirty thousand cubic yards.”

The petition then avers that plaintiff duly entered upon the performance of the contract, and removed 6862 cubic yards of clay, in accordance therewith, for which he was entitled to receive $1372.40; that defendant had paid plaintiff the sum of $997.39, leaving a balance due plaintiff of $375.01 for clay actually removed by him under the terms of the contract. It is then alleged that on the--day of February, 1906, defendant, without cause, wrongfully prevented plaintiff from continuing under the contract and terminated the same, though plaintiff had duly performed on his part and was ready, willing and able to continue the work under the contract; that had plaintiff been permitted to so continue he would have removed in all the sum of thirty thousand cubic yards of clay, and that upon the clay which he had not removed he would have made a net profit of six cents per cubic yard, or a total of $1388.88. Judgment is therefore prayed for $1763.89, the sum of the two above-mentioned items.

The answer is a general denial.

•The trial, before the court and a jury, resulted in a verdict and judgment for plaintiff for $1000, from which defendant prosecutes this appeal.

It is unnecessary to here review the evidence adduced at the trial. It is sufficient to say that there was abundant testimony in plaintiff’s behalf tending to establish the cause of action pleaded in his petition, and to sustain the verdict and judgment.

Aside from some criticism of cme instruction, which does not warrant discussion, the assignments of error have to do with the effect of the allegation above quoted from the petition, viz., that is was agreed between the parties that there were originally thirty thousand cubic yards of clay to be removed. The written contract did not contain such a provision, and it is urged that the court erred in admitting it in evidence, over defendant’s objections, upon the ground that it was not the contract declared on in the petition; and that defendant’s demurrer to the evidence should have been sustained for the reason that there was thus a total failure of proof as to the cause of action pleaded. In this same connection also other points are raised which need not he specifically stated. But it is readily apparent that there is no merit in these contentions. The allegation in question is not an averment of any constitutive element of plaintiff’s cause of action. By pleading the contract, performance by plaintiff, and the facts alleged to constitute a breach thereof, plaintiff fully pleaded his cause of action. The statement that the parties “agreed” that the clay to be removed amounted to a certain number of cubic yards is an immaterial averment, and merely relates to the remedy in that it pertains to the quantum of damages recoverable. It is not averred as being one of the stipulations of the written contract, nor as otherwise constituting any binding agreement between the parties, limiting the amount of clay to be removed, which is otherwise alleged to be “the clay” in the quarry, as the contract provides. According to plaintiff’s evidence defendant’s president stated, when the written contract was executed, that the clay to he removed. amounted to thirty thousand cubic yards. It is to be inferred that plaintiff assumed this to be correct; and the evidence was that there was at least this amount of clay. Though it is pleaded that the parties agreed as to this, it is evident that what is meant is that defendant thus made an admission as to a matter affecting the amount recoverable in the action. It was, in effect, pleading the evidence, in part, by which plaintiff expected to prove the amount of clay to be removed, as elsewhere alleged in Ms petition; and though it may be open to criticism on this score, as a matter of pleading, this allegation had no such effect as appellant seeks to give to it.

Nor was there a total failure of proof. At most there was a mere variance between the pleading and the proof. And if there can be said to have been any such variance it was not material; nor does it appear that the appellant was thereby in any way misled to its prejudice. [Sec. 1846, Rev. Stat. 1909.] And,-in any event, since appellant did not pursue the course pointed out by the statute it cannot now complain thereof. [See Fisher v. Realty Co., 159 Mo. 562, 62 S. W. 443; Rundelman v. Boiler Works Co., 178 Mo. App. 642, 161 S. W. 609.]

In Mekos v. Fricke, 159 Mo. App. 631, 139 S. W. 1181, this court had before it the very question here involved, and the opiMon is pointed authority for our ruling herein.

The case was well tried below, and the record is free from prejudicial error. The judgment should therefore be affirmed. It is so ordered.

Reynolds, P. J., and Nortoni, J., concur.