Davis v. Tubbs

• Decision Date: 01 October 1895
• Citation: 64 N.W. 534,7 S.D. 488
• Parties: DAVIS v. TUBBS.
• Court: South Dakota Supreme Court

7 S.D. 488

64 N.W. 534

DAVIS

v.TUBBS.

Supreme Court of South Dakota.

Oct. 1, 1895.

Syllabus by the Court.

1. Where a party to a contract is prevented by the wrongful act of the other party from completing the same, he has the choice of two remedies for obtaining redress: He may treat the contract as rescinded, and recover the value of his services, and for material furnished and money necessarily expended under the contract prior to its termination; or he may bring his action upon the contract for a breach of the same, and recover all he would have been entitled to under the terms of the contract, less the expense of completing the same. But he cannot combine the two causes of action in one; he must elect upon which cause of action he will proceed.

2. If the action is brought for the value of his services, material furnished, and money expended under the contract before the same was wrongfully terminated by the defendant, the issue is as to the value of such services, materials furnished, and money expended; and evidenceas to what profits the plaintiff could have made by the terms of his contract had he been permitted to complete the same is irrelevant, and its admission constitutes reversible error.

3. Where D. entered into a contract with T., by which he agreed to take possession of a ranch and flock of sheep belonging to T., and take all necessary care of and bear all the expense incident to the keeping and feeding the same for the period of one year, and, as compensation therefor, D. was to receive one-half of the wool, one-half the increase, etc. After D. had kept said sheep for about eight months, T. (as it was claimed by D.) wrongfully prevented him from completing his contract. D. thereupon brought suit to recover the value of his services and money expended in herding and keeping said sheep for the term he had charge of them. On the trial, after giving evidence tending to prove the money expended by him, etc., he was permitted to give evidence tending to prove what profits he could have made if he had been permitted to complete his contract. Held error.

Appeal from circuit court, Custer county; William Gardner, Judge.

Action by Samuel Davis against Newton S. Tubbs for breach of contract. Plaintiff had judgment, and defendant appeals. Reversed.

Buel R. Wood (Wood & Buel, of counsel), for appellant. Henry Frawley and H. D. Reynolds (Edmund Smith, of counsel), for respondent.

CORSON, P. J.

The principal errors assigned in this case are those arising from the admission of evidence, and, in order to determine the correctness or incorrectness of the rulings of the court, it becomes necessary to examine the complaint, and ascertain the nature of the action and the issues presented. It is alleged in the complaint that in July, 1890, the plaintiff and defendant entered into a written contract by which it was agreed that the plaintiff should receive from the defendant 1,220 head of sheep and 26 bucks, and also the possession of certain ranches, and should “take all necessary care and bear all the expense incidental to the keeping and feeding said sheep for the period of one year”; and, for such care and feeding of said sheep, the plaintiff was to receive one-half of the increase of said sheep, and one-third of the wool of the same, and one-half the crops and feed not consumed by said herd. It is further alleged: “That, under and by virtue of said contract, the said defendant, on or about the 16th day of July, A. D. 1890, delivered to this plaintiff the said herd of sheep and ranches mentioned in said contract, and this plaintiff took immediate possession of the same, and continued in the possession thereof from on or about the 16th day of July, A. D. 1890, up and until on or about the 16th day of March, A. D. 1891, and cared for, fed, and kept the same as provided for in said contract, and in all things duly performed all the conditions of said contract on his part; and that in the care, feeding, and herding of said sheep, and wintering the same, this plaintiff necessarily expended the sum of eight hundred and sixty-three and 66/100 dollars ($863.66). That on or about the said 17th day of March, 1891, the said defendant wrongfully entered upon the premises so leased by this plaintiff under said contract, and took possession of said herd of sheep, and removed the same from said premises, and has ever since withheld the said sheep from this plaintiff, and refused to allow this plaintiff to retain one-half of the increase of said herd, as agreed in said contract, and has refused to allow this plaintiff to retain one-third of the wool derived from said sheep, but has wholly violated his said contract, and has refused to perform the conditions thereof on his part, and has refused to pay the plaintiff the amount actually expended by him in the care of said sheep as aforesaid. That by reason of the premises herein stated, and the violation of the contract on the part of the said defendant herein, in the wrongful taking and appropriation of said sheep, this plaintiff has sustained damages in the sum of fifteen hundred ($1,500.00) dollars.” The complaint concludes with a demand for judgment for $1,500, interest, and costs. To this complaint the defendant answered, denying all the allegations of the same. The case was tried to a jury, and a verdict and judgment rendered for plaintiff, and the defendant appeals.

The complaint seems to have been drawn upon the theory that the plaintiff was prevented from fulfilling the terms of his contract by the...