City of St. Louis v. McDonald

• Decision Date: 31 March 1847
• Citation: 10 Mo. 609
• Parties: THE CITY OF ST. LOUIS v. McDONALD.
• Court: Missouri Supreme Court

10 Mo. 609

THE CITY OF ST. LOUIS

v.McDONALD.

Supreme Court of Missouri.

March Term, 1847.

APPEAL FROM ST. LOUIS COURT OF COMMON PLEAS.

KNOX, for Appellant. 1st. The measure of damages (if any were recoverable), was not the full amount of the installments, as stated in the 2nd instruction given, but the actual profits the plaintiff would have made, had he completed the contract, on the actual damage he sustained in consequence of being thrown out of employment. 7 Greenl. 51; Miller v. Mar. Church, 6 Greenl. 208; Nourse v. Snow, Chitty on Contracts, 3rd Am. ed. 343; 21 Wend. 457. 2nd. No action could be sustained upon said contract, until McDonald had demanded the certificate of the street inspector, for the amount due. 3rd. The contract being made with a municipal corporation, under an ordinance regulating the making of such contracts, of the existence of which the plaintiff was bound to take notice, the provisions of said ordinance are as much a part of the contract as if they were expressly inserted. 4th. The Court of Common Pleas erred in excluding evidence, that the plaintiff was so addicted to drunkenness, as to be incapable of performing his contract. 5th. The 1st instruction given, is erroneous, inasmuch as it says that the jury, in order to find for the defendant, must find an entire failure on the part of the plaintiff, to comply with his obligation. 6th. The 4th instruction given was erroneous. 7th. The 3rd instruction asked by the counsel for defendant, should have been given. Chitty on Contracts, 3rd Amer. ed. 16; Chitty's Pl., 7th Amer. ed. 351-2; 2 Johns. R. 207, Green v. Reynolds. 8th. The court erred in refusing the 4th instruction, asked by defendant's counsel.

CALLAHAN, for Appellee.

NAPTON, J.

This was an action of assumpsit, brought by McDonald against the City of St. Louis, upon a written contract between the parties, in which McDonald became the contractor for cleaning certain streets in the city at a specified price. By the agreement, McDonald was to receive his pay in monthly installments, and it was further agreed, that if he neglected to perform his work, to the satisfaction of the inspector of the district where the work was to be done, the said inspector might cause the work to be performed by some other person, and deduct the expense from McDonald's compensation. The contract provided for the continuation of McDonald's services for nearly a year, to-wit: from the 14th of March, 1845, to the first Monday of March, 1846. It was further agreed, that the contractor should receive city warrants in payment of his stipulated price. The plaintiff obtained a verdict for $807 9.

It appeared upon the trial, that the street inspector was dissatisfied with the manner in which McDonald's work was done, and that he was discharged on the 28th of April, 1845, by a notification from the mayor, declaring his contract forfeited. Evidence was given on either side, to show the manner in which McDonald had done his work. The evidence on behalf of the plaintiff tending to show, that he had performed his contract up to his discharge, and that on behalf of the defendant being aimed to prove the reverse.

The court instructed the jury as follows: 1. There is no reservation in the contract given in evidence, of the right to supercede the contractor, and therefore the jury must find an entire failure on the part of the plaintiff to comply with his obligation, in order to find for the defendant. 2. If the jury shall find from the evidence, that the contract was in part fulfilled, the remedy of the City for any partial failure, was by employing hands at the expense of the contractor, to complete the work; and on such finding the the jury must give the plaintiff the full amount of the installments due and remaining unpaid on the contract at the time of instituting this suit. 3. The jury will credit the City with such payments as they shall be satisfied from the evidence were made for and on account of work done by others, which ought to have been done by the plaintiff, before he was dismissed by the...