Fulkerson v. Eads

• Decision Date: 07 December 1885
• Citation: 19 Mo.App. 620
• Parties: NICHOLAS H. FULKERSON, Appellant, v. CHARLES H. EADS, Respondent.
• Court: Missouri Court of Appeals

19 Mo.App. 620

NICHOLAS H. FULKERSON, Appellant,

v.CHARLES H. EADS, Respondent.

Kansas City Court of Appeals, Missouri.

Dec. 7, 1885.

Reversed and remanded.

APPEAL from Johnson Circuit Court, HON. NOAH M. GIVAN, Judge.

The facts are sufficiently stated in the opinion.

SAMUEL P. SPARKS, for the appellant.

I. The failure of defendant to perform the express covenants in the contract of letting, “to plow the land in the month of August, and to sow the wheat by the twentieth of September,” rendered him liable for nominal damages, at least; and the court erred in modifying plaintiff's first instruction, which precluded such recovery. Metzner v. Graham, 66 Mo. 582; 1 Sutherland on Damages, 9-16; Davis v. Smith, 15 Mo. 306.

II. As to the re-letting of the tenant house by plaintiff, it was an act for the benefit of defendant, and knowledge and acquiescence on his part was ratification. Turner v. R. R., 51 Mo. 501; 62 Mo. 579; Hutchinson v. Jones, 79 Mo. 496; Article on Ratification, 19 Cent. L. J. 482.

III. The instructions for defendant were erroneous in precluding the recovery of nominal damages, and in being inconsistent with other instructions given in the cause. Haysler v. Owen, 61 Mo. 270.

IV. Where a party by his own contract creates a charge or duty upon himself, he is bound to make it good, if he may, notwithstanding any accident, by inevitable necessity, because he might have provided against it by his contract. Davis v. Smith, 15 Mo. 306.

V. The averments of the answer, claiming recoupment are not supported by the evidence. The affidavits in support of motion for new trial entitled plaintiff to another trial, and the verdict cannot stand.

O. L. HOUTS, for the respondent.

I. The failure of defendant to perform the covenants in the contract to plow and sow the land, at the time stated, did not render him liable for damages, either actual or nominal, when performance by him was prevented “by circumstances over which he had no control and could not reasonably have provided against,” and he made substantial performance within a reasonable time thereafter. Elliott v. Bobb, 6 Mo. 324; 1 Parsons on Contracts (6 Ed.) 671-673; Bishop on Contracts, sections 610-631 inclusive. The facts in Davis v. Smith (15 Mo. 467), are wholly unlike this case, and the doctrine therein has been modified, if not repudiated, in this state, and elsewhere. See authorities cited, supra.

II. After the breach, plaintiff, according to his own testimony, without objection, permitted defendant to plow, sow and reap, make performance, and received his part of the proceeds. This would be a waiver of any claim for damages on account thereof.

III. The plaintiff's instructions were properly refused. He did not ask for nominal damages at the trial; he cannot try the case upon one theory and present it upon another here. Walker v. Owens, 79 Mo. 563; Whetstone v. Shaw, 70 Mo. 575. Under the pleadings he was not entitled to them. Nor is he entitled to a new trial on the ground of surprise. He should have taken a non-suit and not proceed, and set up surprise in the event of defeat. Bragg v. Moberly, 17 Mo. App. 221.

IV. The rule as to measure of damages laid down in the instructions of defendant was the same as in those given plaintiff. On the whole record the case was fairly tried; the judgment was for the right party, and should stand.

ELLISON, J.

Plaintiff leased to defendant a tract of land for farming purposes; a portion thereof was, by the terms of the lease, to be put in wheat, and it was therein stipulated that “the remaining sixty acres to be put in wheat, the ground to be broke in the month of August, 1882, and the wheat sowed by the twentieth day of September, 1882.”

Defendant did not break the ground nor sow the wheat as he stipulated in his written contract, and plaintiff brings this action for damages, assigning the foregoing failure, among others, as the breach.

There was evidence in the cause tending to support plaintiff's case and that he was materially damaged by defendant's failure to comply with portions of his contract as set forth in the lease. There was, also, evidence on the part of defendant tending to support the defence he set up in his answer, viz.: that he plowed the land and sowed the wheat as soon after the time mentioned as possible. That he was damaged by plaintiff pasturing the wheat and permitting others to do so, etc. The verdict and judgment was for defendant. Plaintiff claimed the right to nominal damages, at least, for the breach of the contract to plow and sow within the time stipulated. Defendant denied the right, and in this view the court framed the instructions.

It is a principle that for the violation of every legal right, nominal damages, at least, will be allowed. And the failure to perform a duty or contract is a legal wrong, independent of actual damage done to the party for whose benefit the performance of such duty or contract is due. 2 Sutherland on Damages, 11, 13. “The damages which...