Goldman v. Wolff

Citation6 Mo.App. 490
PartiesIGNATZ GOLDMAN, Respondent, v. MARCUS A. WOLFF ET AL., Appellants.
Decision Date04 February 1879
CourtCourt of Appeal of Missouri (US)

1. Courts will not give a meaning to a contract repugnant to that which the acts of the parties have given it, where the letter of the contract is not repugnant to such meaning.

2. Because of the difficulty in computing the damages caused by a breach of contract the party who has committed the breach is not to be allowed to escape with nominal damages.

3. Where, by the contract, plaintiff was to receive a percentage of the gross receipts for three years, the measure of damages for a breach of the contract is such sum as plaintiff would have made as his share of the contract during the three years, less what he might have reasonably earned during that time; and in estimating this amount, the sales made since the contract may be taken into consideration, with other evidence showing probability of increase or decrease of business by fluctuation of trade or other causes.

4. Where counsel stated in argument to the jury that a verdict for a certain amount had been rendered in the cause upon a former trial, and, on being rebuked by the court, apologized by saying, “This is a matter of record,” and the court refused to grant a new trial, held, that this was not sufficient ground for reversal.

APPEAL from St. Louis Circuit Court.

Affirmed.

CLINE, JAMISON & DAY, for appellants: It is only where there are proper data for calculation that damages can be recovered in an action on a contract.-- Nightingale v. Caswell, 18 Cal. 315; Forrest v. Caldwell, 5 La. An. 220; Masterton v. Mayor, etc., 7 Hill, 61; Griffin v. Colver, 16 N. Y. 489. There was no mutuality in the contract here sued on. The defendants were not bound to furnish any employment to the plaintiff, and the petition does not contain the assignment of a breach. The fact alleged, that the defendants discharged plaintiff, does not constitute a breach of the contract.-- Williamson v. Taylor, Dav. & Mer. 389; Dunn v. Sayles, 8 Jur. 358; Lees v. Whitcomb, 5 Bing. 34; Smith's M. & S. 49; Schouler's Dom. Rel. 618. Courts of law cannot incorporate into an instrument what the parties left out of it, even though the omission was occasioned by the clearest mistake; nor can they reject what the parties inserted, unless it be repugnant to some other part of the same instrument.”-- Sheets v. Selden, 7 Wall. 423; Canal Co. v. Coal Co., 8 Wall. 290; Maryland v. Railroad Co., 22 Wall. 112; Nichol v. Goetts, 10 Exch. 194; Besant v. Cross, 10 C. B. 895; 15 Jur. 828. The action of counsel in stating that a verdict for a certain sum had formerly been rendered in the same case, is ground for a new trial, or for a reversal in the appellate court.-- Tucker v. Henniker, 41 N. H. 319; Berry v. The State, 10 Ga. 523; Mitchum v. The State, 11 Ga. 615; Gould v. Moore, 40 N. Y. Sup. C. 396; Koelges v. Insurance Co., 57 N. Y. 638; Crandall v. The People, 2 Lans. 312; Martin v. Orndorff, 22 Iowa, 504; Rolfe v. Rumford, 66 Me. 464; Baldwin's Appeal, 44 Conn. 37.

R. E. ROMBAUER, for respondent: Where it is manifest that it was the intention of the parties, and the consideration upon which one party assumed an express obligation, that there should be a corresponding and correlative obligation on the other party, such corresponding and correlative obligation will be implied.-- Lewis v. Insurance Co., 61 Mo. 534; Hammer v. Breidenbach, 31 Mo. 53. The acts of the parties under a contract can always be looked to in aid of its interpretation, and furnish often the best guide to ascertain their intention.-- St. Louis Gas-Light Co. v. City of St. Louis, 46 Mo. 121; Patterson v. Camden, 25 Mo. 13; Whitehead v. Bank, 2 Watts & S. 175. In an action for breach of contract for personal services, the contract-price is the measure of damages.-- Pond v. Wyman, 15 Mo. 176; Nearns v. Harbert, 25 Mo. 352; Steinberg v. Gebhardt, 41 Mo. 519. And the mere fact that there is an inherent difficulty in the contract itself, to ascertain accurately such damages, does not affect the rule.-- Burrell v. Saginaw, etc., Co., 14 Mich. 34; Alfaro v. Davidson, 40 N. Y. Sup. Ct. 88. Even profits can be recovered in an action for breach of contract, where such profits are the proximate loss resulting from the breach, and were in contemplation of the parties when the contract was entered into.-- Masterton v. Mayor, etc., 7 Hill, 62; Hoy v. Gronoble, 34 Pa. St. 9; Railroad Co. v. Howard, 13 How. 307; Cook v. Commissioners, 6 McLean, 615, 616; Fox v. Harding, 7 Cush. 522.

HAYDEN, J., delivered the opinion of the court.

This is an action to recover damages for breach of a written contract between the plaintiff, as party of the second part, and the defendants, of the first part, the material portion of which is as follows: “The said party of the second part agrees to manufacture at the distillery of Bevis & Company, corner of Barton and De Kalb Streets, St. Louis, Mo., for the parties of the first part, what is known as Hungarian yeast (compressed); the parties of the first part agreeing to pay the party of the second part for his service twenty per cent (20 per cent) of gross cash receipts from the sale of said yeast. The said Goldman, in consideration of the above interest, further agrees and binds himself to give all his entire time and attention to the manufacture of said yeast; and further, that the said Goldman will not assist any other party or parties in the manufacture of said yeast as long as this contract shall be in force. This contract shall be in force for the term of three years from and after the first day of April, 1877, and said Goldman shall receive, between the first and fifth of every month, his twenty per centum of gross cash receipts of the month previous.”

The petition alleges that the defendants, on March 17, 1877, when the contract was made, owned and operated a distillery of large dimensions and capacity, where they manufactured yeast; that in consideration of the fact that the plaintiff would give his entire time and attention to the manufacture of compressed yeast for three years after the first day of April, 1877, at the distillery, and would manufacture a merchantable article, they agreed by the contract to continue the manufacture of such compressed yeast during the three years, they to furnish the necessary material and to use reasonable efforts to dispose of the yeast by sale; that they would pay plaintiff twenty per cent of the gross cash receipts arising from the sale of the yeast during such periods, in monthly instalments.

The petition alleges that the plaintiff performed his obligations under the contract, and is still ready to do so; but that the defendants, on the fourth day of July, 1877, discharged him, and have since prevented him from going on with his contract, etc. The answer admitted the execution of the contract, denied the other allegations, and charged that the plaintiff obtained the execution of the contract through misrepresentation, and showed himself incompetent to manufacture the yeast, he failing after repeated trials.

It appeared that the defendants owned and managed a distillery in St. Louis, and that the plaintiff entered upon the performance of the contract there. There was evidence tending to show that the plaintiff had been a practical distiller and yeast-maker in Hungary, and that before entering into the contract he made a trial of his skill as a manufacturer of compressed yeast at the defendants' distillery in St. Louis; that he continued to act under the contract until July 4, 1877, when he was discharged. There was evidence to the effect that he faithfully executed his part of the contract; that while he was at work the defendants furnished the implements and materials at their expense; and that the plaintiff procured agents to sell the yeast, who sold at prices fixed by the defendants, the defendants receiving the proceeds of the sales. The evidence was conflicting as to the good or merchantable quality of the yeast, and as to its use for baking purposes. The defendants adduced evidence tending to prove they were compelled to throw away the greater portion of the yeast on account of its quality. The jury returned a verdict for the plaintiff for $2,500, and the defendants appealed.

The following instructions, given for the plaintiff, show the theory upon which the case was put to the jury:--

“The jury are instructed that the contract between plaintiff and defendants, as the same is set out in plaintiff's amended petition, stands admitted; that by said contract the plaintiff did not warrant that he could or would manufacture for defendants compressed yeast of a certain quality or excellence, but only that he could and would manufacture for defendants a merchantable quality of the article commonly known as compressed yeast. If, therefore, the jury find from the evidence that plaintiff,...

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5 cases
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    • 18 Diciembre 1886
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  • State ex rel. Kearney v. Finn
    • United States
    • Missouri Court of Appeals
    • 18 Enero 1887
    ...once desisted. Under the circumstances, we are not warranted to vacate a judgment, otherwise correct, on this ground alone. Goldman v. Wolff, 6 Mo. App. 490, 497; The State v. Lee, 66 Mo. 165, 168. We are justified to assume that the rebuke of the court has warned the jury to disregard the ......
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    • 5 Marzo 1928
    ...by law. However, by showing the breach of the contract nominal damages necessarily follow. Owen v. O'Reilly, 20 Mo. 603; Goldman v. Wolff, 6 Mo. App. 490. Defendants denied under oath that they were copartners, and it is contended that the evidence failed to establish that fact. However, as......
  • VoJta v. Pelikan
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    • Missouri Court of Appeals
    • 13 Mayo 1884
    ...in argument to the jury, and his statements unsupported by the evidence is sufficient ground for a reversal of the judgment.-- Goldman v. Wolff, 6 Mo. App. 490; Tucker v. Henniker, 41 N. H. 317; Lloyd v. Railroad Co., 53 Mo. 509; Proffat on Jur. Tr., sect. 250. EDMOND A. B. GARESCHE, for th......
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