Black v. Emory

• Decision Date: 13 August 1925
• Citation: 275 S.W. 51,218 Mo.App. 352
• Parties: L. O. BLACK, Respondent, v. J. W. EMORY, Appellant. *
• Court: Missouri Court of Appeals

275 S.W. 51

218 Mo.App. 352

L. O. BLACK, Respondent, v. J. W. EMORY, Appellant. *

Court of Appeals of Missouri, Springfield

August 13, 1925

Appeal from the Circuit Court of New Madrid County.--Hon. Henry C Riley, Judge.

AFFIRMED.

Judgment affirmed.

William Grissom, of East Prairie, and Gallivan & Finch, of New Madrid, for appellant.

Ward Reeves & Oliver, of Caruthersville, for respondent.

BAILEY J. Cox, P. J., and Bradley, J., concur.

OPINION

BAILEY, J.

This is an action by the seller for breach of contract for the sale of sixty-five acres of timber land. A written contract was entered into May 10, 1920, and recited, among other things, that the price for the land was to be $ 3250 of which sum $ 1000 was acknowledged paid at the signing and received by the seller "as a part of the consideration of said sale." The contract was to be fully performed on or before January 1, 1921, at which time the balance of the purchase price was required to be paid. An abstract was to be furnished within a time, not specified; if the title proved defective and was uncorrected, the contract was to be void and the $ 1000 paid returned to buyer; if the title proved good and the seller kept his part of the contract, but the buyer failed within the time limited, the one thousand dollars was to be forfeited. The contract further provided that the "purchasers may enter at once to cut timber." The petition was in two counts seeking damages on the first count for breach of the contract of sale and on the second count, the sum of $ 3578.77 for cutting and converting the timber. The answer admitted defendant cut the timber to the value of $ 450, but pleaded failure of performance on part of plaintiff and asked that the contract be rescinded and the $ 1000 paid be returned to defendant. The verdict was for plaintiff on the first count in the sum of $ 975; for plaintiff on the second count in the sum of $ 1200 and for plaintiff on the whole case in the sum of $ 1175. From this verdict and judgment, defendant has appealed.

Defendant assigns as error that the jury disobeyed the instruction of the court and that the verdict was not sustained by the evidence and was excessive; that the court erred in admitting evidence of damages for the reason the contract provided as liquidated damages the sum of $ 1000.

Defendant's written brief and argument urges first, that the court erred in construing the contract as a penalty in the sum of $ 1000 instead of $ 1000 as liquidated damages. Without entering into a discussion of whether or not the clause referred to in the contract is a penalty or is to be construed as liquidated damages, it is our opinion that the trial court adopted the view defendant had at the trial, in giving defendant's instruction No. 4, which, after requiring the jury to find that plaintiff had complied with all the terms of the contract, directed that they should find for plaintiff in the sum he was actually damaged and if the amount was found to be less than $ 1000, the verdict should be for defendant for the difference and "if the damages were found to equal or exceed $ 1000 then, the verdict should be for defendant on plaintiff's petition and for plaintiff on defendant's counterclaim without specifying any sum." It should first be noted that defendant, by his pleading, fails to answer the two counts of plaintiff's petition separately, but offers to pay for the timber (which would apply to the second count) and then prays that the contract be rescinded and the one thousand dollars paid on the purchase price be returned (which would apply to the first count). The instruction above referred to does not specify to which count it is directed, but from its wording it could apply only to the first count, based on the breach of contract. By that instruction defendant placed his own interpretation on the contract, which interpretation not only the court adopted, but the jury likewise. It will be observed the jury found for plaintiff on the first count in the sum of $ 975. The undisputed evidence disclosed that the difference between the contract price for the sixty-five acres and the value it would have been on January 1, 1921, when the contract was to be consummated, was exactly $ 975, not taking into consideration, the fact that the timber had been removed. Accordingly the jury determined, as defendant's instruction No. 4 directed, that the actual damage was $ 975 for which plaintiff was given judgment. The verdict is in three parts and not as clear...