Claudius v. West End Heights Amusement Co.

• Decision Date: 27 December 1904
• Citation: 84 S.W. 354,109 Mo. App. 346
• Parties: CLAUDIUS v. WEST END HEIGHTS AMUSEMENT CO.
• Court: Missouri Court of Appeals

84 S.W. 354

109 Mo. App. 346

CLAUDIUS v. WEST END HEIGHTS AMUSEMENT CO.

St. Louis Court of Appeals. Missouri.

December 27, 1904.

CONTRACTS — EXCUSE FOR NONPERFORMANCE — FORFEITURES — WAIVER — INSTRUCTIONS — DAMAGES—APPEAL—HARMLESS ERROR.

1. Where the time of payment under a contract is extended after date for payment, the right of enforcing a forfeiture for default in prompt payment is waived.

2. Where a contract with an amusement company provided that plaintiff should install his apparatus only in such localities as might be

assigned to him by the former, and the company refused to assign spaces for the apparatus, and incumbered the ground with debris so that it would have been impracticable for plaintiff to construct and operate his concessions, the latter was excused from performance of the conditions of the contract, and was entitled to recover damages, as in case of full performance, for the company's breach of the contract.

3. In an action against an amusement company for the latter's breach of contract in failing to assign places for plaintiff to operate his concessions, a charge that if defendant did not, before the date of the payment mentioned in the contract, or before the time to which such date was extended, allot places for the operation by plaintiff of his concessions, then plaintiff was excused from further performance of the contract on his part, was not, when construed with a further charge that defendant could lawfully abrogate the contract on account of plaintiff's default in payment, unless the time of payment was extended, and before the time to which it was extended defendant itself violated the contract by failing to allot plaintiff necessary places to operate his concessions, ambiguous, or subject to the construction of sanctioning the finding for plaintiff, although defendant assigned a locality after the date specified, or of ignoring plaintiff's default prior to such date.

4. In an action against an amusement company for breach of a contract where by the latter was to assign to plaintiff a place for the operation of his concessions, plaintiff was entitled to the repayment of moneys paid by him on account of the stipulated price of the concessions, and to the reasonable expenses incurred by him in preparing for the execution of the contract on his part.

5. Error in the reception of evidence of improper items of damage was harmless, where the items of damage to which plaintiff was entitled exceeded, by a sum in excess of the amounts complained of, the amount to which his recovery was restricted by the charge.

Appeal from St. Louis Circuit Court; W. B. Douglas, Judge.

Action by Charles Claudius against the West End Heights Amusement Company. From a judgment for plaintiff, defendant appeals. Affirmed.

Rassieur & Rassieur, for appellant. C. Claflin Allen and Johnson & Richards, for respondent.

REYBURN, J.

In March, 1903, the parties hereto entered into a contract, reduced to writing, by the terms of which plaintiff, in this court the respondent, was granted the exclusive right of installing and operating various characters of amusements and pleasure devices at appellant's amusement garden and resort, known as "West End Heights," for the summer season of 1903, and conditionally for the season of 1904 as well, such annual seasons to embrace at least three months from June 1st of each year, and in return for such concession respondent agreed to pay $11,250 in specified installments, at dates designated, during the contract period, and was accorded the right of assignment of any or all the privileges, and the penalty of forfeiture of all contract rights was imposed on violation of or default in any of the agreements entered into by him. Among other obligations assumed, respondent agreed to purchase a merry-go-round, then on appellant's premises, for $750, to be rebought by appellant, in event of forfeiture, at $637.50; and the contract particularly provided that appellant should determine from time to time the position in its premises where the various amusements should be carried on by respondent, who was prohibited from conducting them at different places. Declaring on this contract, respondent alleged that he entered upon its performance, and continued its observance in all respects, until prevented by the wrongful acts of appellant in willfully and wrongfully refusing to allot suitable places, whereon he could erect and operate the concessions, ignoring respondent's frequent requests, and wrongfully obstructing the ground with building materials in places necessary for the operation of the concessions secured, rendering their erection and conduct impossible; that such acts complained...