BROADDUS, J.
— As a proper determination of this cause turns upon a construction, to some extent, of the pleading of the parties, it becomes necessary to incorporate certain parts of the petition in this opinion. The petition alleges: “That on the eleventh day of September, 1900, in consideration of the promises then and there made by the plaintiff, he would drive to the defendant’s station at Lathrop, Missouri, and have there on the thirteenth day of September, 1900, ready for shipment and to be shipped over defendant’s railroad, seven thirty-six-foot cars, cattle sufficient to fill said cars in readiness to receive and transport plaintiff’s said cattle, as aforesaid, all of which defendant’s-agents and servants then and there well knew, said cattle were to be sold upon the markets of Chicago, Friday morning, the fourteenth day of September thereof; that plaintiff relying on said undertaking and agreement, drove his said cattle to said station on said thirteenth day of September at said station, ready for shipment and to be shipped on said defendant’s railroad to Chicago, Illinois, cattle sufficient to fill said cars. Plaintiff further states that the defendant, disregarding its [97]*97said -undertaking and agreement, failed to provide and furnish or have in readiness at said station on said thirteenth day of September any cars to receive and transport plaintiff’s cattle as aforesaid, and did not furnish said cars at the hours that it was understood and agreed to have his said cattle in readiness, at one o’clock a. m., on the thirteenth day of September aforesaid, and did not provide or furnish said cars until 4:30 a. m. of said day, too late for plaintiff’s cattle to be transported and sold on the market for which they were being shipped, and of which defendant then and' there well knew.”
The petition further proceeds to allege that by reábon of the failure of defendant to provide cars in time for shipment for the Chicago market of September 14,. they were not shipped by him but returned to his farm, and that by reason of all which their value was depreciated on account of shrinkage to his damage in the sum of five hundred dollars.
The defendant’s answer, after a general denial of the allegations of the petition, among other things alleges, that the contract of the defendant was to provide at said station of Lathrop a sufficient number of cars, to receive and transport the plaintiff’s cattle to the Chicago market, that said cars were to be furnished by it on the thirteenth day of September in time for said cattle to reach said market on the fourteenth day of said month, and that said cars were so furnished by it at said station to receive and ship said cattle, on said day in time for shipment to said market for said fourteenth day of said month, but that plaintiff failed and refused to ship his cattle as he had agreed by the terms, of his contract to do. *
Ón the trial the plaintiff for recovery relied upon the fact of the failure of the defendant to have its cars bn hand in readiness for loading and shipment at one o’clock, September 13. The defendant objected to the introduction of any evidence under the petition in the case, for the reason, that it did not state a cause [98]*98of action. The objection was overruled and defendant duly excepted to the action of the court in overruling its objection.
It will be seen by an examination of the petition, which is very loosely drawn, that it does not allege the existence of any .contract between himself and the defendant for the shipment of his cattle to Chicago, but at most, it can only be construed as pleading a breach of an nnpleaded contract. It is a familiar rule of pleading, that in actions to recover damages for the breach of a contract, a contract must be set out in haec verba or according to its legal effect, with a proper assignment of the breaches relied on. Langford v. Sanger, 40 Mo. 161; Peck v. Bridwell, 6 Mo. App. 451. It follows, therefore, that the introduction of any evidence under said petition was inadmissible by reason of its fatal defects, unless such defects were cured by the defendant’s answer. The answer does set out that there had been a contract entered into between the parties, for the shipment of the plaintiff’s cattle from said station of Lathrop to Chicago, the substance of which, we have seen, was that the defendant agreed to have the necessary cars for their reception and shipment at the station on September 13, in time for their transportation to Chicago for Friday’s market, September 14, but that defendant failed and refused to ship his cattle.
It is also a rule of pleading that the defective allegations of a petition may be supplied by those of the answer, so that when read together, a cause of action is stated. Insurance Co. v. Tribble, 86 Mo. App. 546. The, plaintiff in reply to defendant’s answer admitted the contract as set out therein. If, then, the answer of the defendant is to be treated as supplying the defects of plaintiff’s petition as to the averment of a contract between the parties, then the issue on trial was on said contract and not on the alleged breach of another and different one. But as the plaintiff was seeking to recover for the breach of an unpleaded contract, for failure of the defendant to accept and ship his cattle at one o’clock September 13, and not for failure [99]*99to accept and ship them on said day in time for their arrival at Chicago for the market of Friday, September 14, he was not entitled to recover for the alleged breach, for the issue, if any, was on a breach of the contract as set-out in said answer.
But we are of the opinion that Jthere is a marked difference between the two contracts, and that the alleged breach of contract is not to be referred to and made applicable to the one pleaded by defendant. The case was tried upon the theory, as all the plaintiff’s instructions show, that he must recover, if at all, upon the allegations of his petition, and not upon the contract .set out in defendant’s answer. The defendant objected to all said plaintiff’s instructions, and they should not have been given, for there was no evidence, when properly considered, to show that the defendant had agreed to accept and ship the cattle at any specified hour on September 13. All that was proved was that défendant had agreed to provide cars sufficient for the purpose and have them on hand at the station on September 13, in time for the loading and transportation of plaintiff’s cattle so that they would reach Chicago on the market of Friday, September 14. The , statement of defendant’s agent at the time the contract for shipment was made, for the plaintiff to> have his cattle at the station so that loading on the cars could begin at one o ’clock a. m., in order to' get them to Chicago at the desired time, was merely a precaution upon the part of the agent to enable the defendant to carry out the terms of delivery at the point of destination. Whether plaintiff got his cattle to the station at one o’clock or four o’clock a. m., on the day named, was immaterial, if the defendant offered to accept and ship them, for under its contract it was bound to have them at their destination by the designated time, or answer in damages to the plaintiff, if any, caused by delay.
The defendant sought to show on the trial, and we think successfully, that on September 13 it was ready and willing to receive and ship plaintiff’s cattle, in time for their arrival at Chicago for Friday’s market. In [100]*100fact, the court at the instance of defendant instructed the jury in an instruction on this theory of the case.
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BROADDUS, J.
— As a proper determination of this cause turns upon a construction, to some extent, of the pleading of the parties, it becomes necessary to incorporate certain parts of the petition in this opinion. The petition alleges: “That on the eleventh day of September, 1900, in consideration of the promises then and there made by the plaintiff, he would drive to the defendant’s station at Lathrop, Missouri, and have there on the thirteenth day of September, 1900, ready for shipment and to be shipped over defendant’s railroad, seven thirty-six-foot cars, cattle sufficient to fill said cars in readiness to receive and transport plaintiff’s said cattle, as aforesaid, all of which defendant’s-agents and servants then and there well knew, said cattle were to be sold upon the markets of Chicago, Friday morning, the fourteenth day of September thereof; that plaintiff relying on said undertaking and agreement, drove his said cattle to said station on said thirteenth day of September at said station, ready for shipment and to be shipped on said defendant’s railroad to Chicago, Illinois, cattle sufficient to fill said cars. Plaintiff further states that the defendant, disregarding its [97]*97said -undertaking and agreement, failed to provide and furnish or have in readiness at said station on said thirteenth day of September any cars to receive and transport plaintiff’s cattle as aforesaid, and did not furnish said cars at the hours that it was understood and agreed to have his said cattle in readiness, at one o’clock a. m., on the thirteenth day of September aforesaid, and did not provide or furnish said cars until 4:30 a. m. of said day, too late for plaintiff’s cattle to be transported and sold on the market for which they were being shipped, and of which defendant then and' there well knew.”
The petition further proceeds to allege that by reábon of the failure of defendant to provide cars in time for shipment for the Chicago market of September 14,. they were not shipped by him but returned to his farm, and that by reason of all which their value was depreciated on account of shrinkage to his damage in the sum of five hundred dollars.
The defendant’s answer, after a general denial of the allegations of the petition, among other things alleges, that the contract of the defendant was to provide at said station of Lathrop a sufficient number of cars, to receive and transport the plaintiff’s cattle to the Chicago market, that said cars were to be furnished by it on the thirteenth day of September in time for said cattle to reach said market on the fourteenth day of said month, and that said cars were so furnished by it at said station to receive and ship said cattle, on said day in time for shipment to said market for said fourteenth day of said month, but that plaintiff failed and refused to ship his cattle as he had agreed by the terms, of his contract to do. *
Ón the trial the plaintiff for recovery relied upon the fact of the failure of the defendant to have its cars bn hand in readiness for loading and shipment at one o’clock, September 13. The defendant objected to the introduction of any evidence under the petition in the case, for the reason, that it did not state a cause [98]*98of action. The objection was overruled and defendant duly excepted to the action of the court in overruling its objection.
It will be seen by an examination of the petition, which is very loosely drawn, that it does not allege the existence of any .contract between himself and the defendant for the shipment of his cattle to Chicago, but at most, it can only be construed as pleading a breach of an nnpleaded contract. It is a familiar rule of pleading, that in actions to recover damages for the breach of a contract, a contract must be set out in haec verba or according to its legal effect, with a proper assignment of the breaches relied on. Langford v. Sanger, 40 Mo. 161; Peck v. Bridwell, 6 Mo. App. 451. It follows, therefore, that the introduction of any evidence under said petition was inadmissible by reason of its fatal defects, unless such defects were cured by the defendant’s answer. The answer does set out that there had been a contract entered into between the parties, for the shipment of the plaintiff’s cattle from said station of Lathrop to Chicago, the substance of which, we have seen, was that the defendant agreed to have the necessary cars for their reception and shipment at the station on September 13, in time for their transportation to Chicago for Friday’s market, September 14, but that defendant failed and refused to ship his cattle.
It is also a rule of pleading that the defective allegations of a petition may be supplied by those of the answer, so that when read together, a cause of action is stated. Insurance Co. v. Tribble, 86 Mo. App. 546. The, plaintiff in reply to defendant’s answer admitted the contract as set out therein. If, then, the answer of the defendant is to be treated as supplying the defects of plaintiff’s petition as to the averment of a contract between the parties, then the issue on trial was on said contract and not on the alleged breach of another and different one. But as the plaintiff was seeking to recover for the breach of an unpleaded contract, for failure of the defendant to accept and ship his cattle at one o’clock September 13, and not for failure [99]*99to accept and ship them on said day in time for their arrival at Chicago for the market of Friday, September 14, he was not entitled to recover for the alleged breach, for the issue, if any, was on a breach of the contract as set-out in said answer.
But we are of the opinion that Jthere is a marked difference between the two contracts, and that the alleged breach of contract is not to be referred to and made applicable to the one pleaded by defendant. The case was tried upon the theory, as all the plaintiff’s instructions show, that he must recover, if at all, upon the allegations of his petition, and not upon the contract .set out in defendant’s answer. The defendant objected to all said plaintiff’s instructions, and they should not have been given, for there was no evidence, when properly considered, to show that the defendant had agreed to accept and ship the cattle at any specified hour on September 13. All that was proved was that défendant had agreed to provide cars sufficient for the purpose and have them on hand at the station on September 13, in time for the loading and transportation of plaintiff’s cattle so that they would reach Chicago on the market of Friday, September 14. The , statement of defendant’s agent at the time the contract for shipment was made, for the plaintiff to> have his cattle at the station so that loading on the cars could begin at one o ’clock a. m., in order to' get them to Chicago at the desired time, was merely a precaution upon the part of the agent to enable the defendant to carry out the terms of delivery at the point of destination. Whether plaintiff got his cattle to the station at one o’clock or four o’clock a. m., on the day named, was immaterial, if the defendant offered to accept and ship them, for under its contract it was bound to have them at their destination by the designated time, or answer in damages to the plaintiff, if any, caused by delay.
The defendant sought to show on the trial, and we think successfully, that on September 13 it was ready and willing to receive and ship plaintiff’s cattle, in time for their arrival at Chicago for Friday’s market. In [100]*100fact, the court at the instance of defendant instructed the jury in an instruction on this theory of the case. Thus we see that the case was not tried upon the theory that the defendant’s answer aided or supplied the defects of the plaintiff’s petition, hut that the petition set up one contract, and the answer another and different contract.
The defendant submitted and obtained instruction as to the supposed issue raised by the plaintiff’s petition,. and the question arises, is it now estopped from saying that the case was tried upon an issue not raised by the pleadings? We think not, under the rule announced in a well-written opinion of Judge Gantt in Cochran v. Railroad, 113 Mo. 359, to-wit: “It,must be remembered that a defendant occupies a different attitude from his adversary, the plaintiff. The plaintiff brings the action. If the ruling is adverse, he may take a nonsuit. Not so with the defendant; he is in court without his consent. The court may malm any number of rulings that he may.deem erroneous, but he can not abandon the case; he is in court and must remain till the cause is finished. He has the right to tender as many defenses as he has. If the court erroneously deny him one, he must avail himself as best he can of those remaining. He, however, advises the court and his adversary of his claim, and if he submits, as he is bound to do, to the rulings of the court, and tries his case in accordance with the judgment of the trial court, on what principle is he estopped from complaining of the action of the trial court and his adversary .in forcing him to fight the battle upon the ground selected by them? We see no element of estoppel in such a case. ”
Tested by this rule, we do not think the defendant is estopped from urging here that the court' tried the case upon a false theory, for on the very threshold of the trial it denied the right of the plaintiff to recover, because he had alleged no cause of action, but this objection was overruled and the defendant was thereby compelled to accept the false issue tendered.
[101]*101The evidence in the case shows conclusively that defendant was prepared to receive and ship the plaintiff’s cattle on the thirteenth day of September in time for their arrival at Chicago for - the Friday’s market following, according to schedule time, hut that plaintiff refused to ship them unless defendant’s agent would guarantee their arrival at said market on said day. The agent refused to do so, and the plaintiff returned them to his farm. As has been said, it could make no difference with plaintiff whether defendant received and shipped the animals at one o’clock or later, provided they arrived in Chicago in time for Friday’s market. The essential element of time was not as to any particular hour of the day of the thirteenth of September, when the cattle should be started on their journey, but it was essential only that they should arrive in Chicago in time for Friday’s market. Had plaintiff, therefore, properly brought before the court the issue he was attempting to raise, he was not entitled to recover, for the reason stated, that the starting time from Lathrop to market was not essential, hut the time of arrival alone was. If the plaintiff was not entitled to recover upon his own petition, he was certainly precluded from recovering under the defendant’s answer, for all the evidence plainly showed that the defendant was prepared, a,t the time it offered to receive and ship the cattle, to have within its scheduled time, transported them to Chicago for Friday’s market. The agreement pleaded by the defendant and the alleged breach of the one by the plaintiff were both in the nature of covenants that the cattle would, at th'e time agreed upon, be delivered. If the plaintiff had permitted the defendant to receive and ship his cattle at the time defendant offered to do so, according to the usual custom, they would have arrived at their destination for Friday’s market. Had they not so arrived, the plaintiff would have had his.remedy on the contract, for damages caused thereby. The evidence showed in the most conclusive manner, that the defendant was prevented [102]*102from compliance with Ms contract by the act of the plaintiff.
The conclusion is reached upon a review of the whole case, that the plaintiff, as a matter of law, was not entitled to recover on Ms petition, and under the law and proof, was not entitled to recover under the contract set out in the defendant’s answer.
Cause reversed.