Denny v. Kile

• Citation: 16 Mo. 450
• Parties: DENNY, Appellant, v. KILE et al., Respondents.
• Decision Date: 31 July 1852
• Court: United States State Supreme Court of Missouri

16 Mo. 450

DENNY, Appellant,

v.KILE et al., Respondents.

Supreme Court of Missouri.

July Term, 1852.

1. Where A. contracts to do work under the control and direction of B., he is not responsible for want of skill, unless he fails to comply with B.'s directions.

2. A party can maintain no action on a contract which he procures by fraud.

3. By the terms of a contract sued on, the defendants were to deliver plaintiff broom corn cleaned and baled, ready for shipping, as fast as the same could be prepared by them; the plaintiff was to have the control and direction of the whole work. Held, evidence of defects in machinery furnished by plaintiff to defendants which occasioned delay, is competent evidence for defendants, in an action for a breach of the contract.

4. A plaintiff cannot recover for the breach of a stipulation in a contract, unless he has performed all the acts on his part, which were conditions precedent, and is ready to perform those which were to be performed concurrently with the act of the defendant.

Appeal from Saline Circuit Court.

Hayden, for appellant.

The Circuit Court erred in permitting the defendants to give to the jury irrelevant and illegal testimony, particularly with reference to the unfitness and defects of the horse power furnished them by the plaintiff. 1 Saund. 320, note 4, and other notes therein referred to. 2 Bailey's Rep. 82-4, Rice v. Sims and Worthy; Campbell v. Jones, 6 T. R. 573; 1 H. Black. 273; Doug. Rep. 471; 3 Penn. Rep., Shaw v. Turnpike Co. p. 445; 2 Penn. Rep. 461; Story on Contracts.

Leonard, for respondent.

1. If the contract was obtained from the defendants by fraud, it was void. 2. The obligation of the defendants to cultivate the land, and deliver the plaintiff its produce, was not an independent covenant, but dependent on the fulfillment by the plaintiff of his obligation to furnish seed corn, planter, baling press, cylinders, and money.

3. By the express terms of the contract, it was to be performed under the direction and control of the plaintiff, and, therefore, the defendants were only bound to do the work as directed, provided the instructions were reasonable, and, in the absence of directions, if bound to act at all, they were only bound for the exertion of such skill in the business as they possessed, and not for such skill and work, as in reference to the crop, would be considered reasonable skill or farmerlike work. 4. Even if the plaintiff was under no obligation to furnish a horse power, to be used in driving the machinery, yet, as the work was to be done according to his directions, and he did furnish this power to be used in that way, the defendants were at liberty to show that it was unfit for the purpose, and occasioned delay in the completion of the work, in answer to plaintiff's allegation that the work was not well done, nor completed within the time prescribed by the contract.

5. No instruction was given or refused as to the plaintiff's right of recovery independent of the special contract, and, as the evidence is not preserved, the plaintiff's right to recover on the common counts cannot appear.

GAMBLE, Judge, delivered the opinion of the court.

This was an action of assumpsit by Denny, the appellant, against G. and J. Kile, in the Saline Circuit Court, upon a written agreement, and was tried on pleas of non-assumpsit and set-off at the last November term, when the defendants had a verdict and judgment.

By the agreement, the defendants were to cultivate on their own and their father's farms, one hundred and fifty acres in broom corn, and deliver the brush, cleaned and baled, ready for shipment, to the plaintiff, at the defendants' drying-house, as fast as it could be prepared--all to be delivered before the 20th of September, 1845; and the whole process, from the preparation of the ground to receive the seed to the baling for shipment, to be “under the direction and control” of Denny, who was also to procure seed corn and a machine to plant it, and either to get a baling press or a model by which to construct one, and cylinders for cleaning the brush. Denny was to pay the defendants for the brush fifteen hundred dollars, as follows: before the time of harvesting, as much money, not exceeding five hundred dollars, as would be necessary to prepare for harvesting and saving the brush; at the time of harvesting, as much as would be necessary for saving and preparing the brush for shipment, and the balance on the delivery of the whole produce of the land. Denny was not to pay for ground on which the crop might be destroyed by an overflow of the river--the whole risk from an overflow of the...