Davis v. Brown

• Citation: 67 Mo. 313
• Parties: DAVIS v. BROWN et al., Plaintiffs in Error.
• Decision Date: 30 April 1878
• Court: Missouri Supreme Court

67 Mo. 313

DAVIS

v.BROWN et al., Plaintiffs in Error.

Supreme Court of Missouri.

April Term, 1878.

Error to Audrain Circuit Court.--HON. G. PORTER, Judge.

Action on a special contract to recover for the pasturage of cattle.

McFarlane & Trimble for plaintiffs in error.

In a suit upon a special contract, where there is no quantum meruit count in the petition, the plaintiff must show a strict compliance with the terms of his contract before he is entitled to recover, or some legal excuse for his failure. Yeats v. Ballentine, 56 Mo. 530; Eyerman v. Mt. Sinai Cemetery Asso., 61 Mo. 489. Even if a recovery could have been had on a quantum meruit, the jury should have been instructed to find for the plaintiff, for the time the cattle were allowed to remain on the pasture at the rate of the contract price, less any damages the defendants had sustained by reason of plaintiff's failure to make the new pond, or otherwise keep his contract.

Kennon & McIntyre for defendant in error.

Instruction No. 4, when taken in connection with the instructions given at the request of the defendants could not have misled the jury, and hence furnishes no ground for reversal. Haskings v. St. L. K. C. & N. R. R. Co., 58 Mo. 302; Meyers v. Chicago, R. I. & P. R. R. Co., 59 Mo 223; Karle v. K. C., St Joe. & C. B. R. R. Co., 55 Mo. 476; Hook v. Craighead, 35 Mo. 380. This court will not reverse a case even if the instructions seem to be outside the pleadings, where the complaining party has suffered no prejudice thereby. Rowell v. St. Louis, 50 Mo. 92.

NAPTON, J.

The only error alleged in this case is the 4th instruction given by the court at the instance of the plaintiff. That instruction was as follows: “If the jury believe from the evidence that there was water sufficient in the old pond for defendants' cattle as long as said cattle remained in said pasture, although the new pond was not built, then they must find for the plaintiff for the time said cattle were allowed to remain in said pasture by defendants.”

The action was a special contract, containing stipulations that the plaintiff would dig an additional pond, or throw up a dam over a creek which ran through the pasture, so as to furnish sufficient water for defendants' cattle during the grazing season. This instruction seems to allow the plaintiff to recover on a quantum meruit, although the suit was on a special contract, which was alleged to have been faithfully kept by plaintiff. It is well settled in this State, that where a party fails to conform to the obligations imposed on him in an agreement, he cannot recover on the special contract, but, if his services or materials are of value to the other party and accepted by such ...