Dunnevant v. Mocksoud

• Decision Date: 22 January 1907
• Parties: DUNNEVANT et al., Respondents, v. MOCKSOUD et al., Appellants
• Court: Missouri Court of Appeals

99 S.W. 515

122 Mo.App. 428

DUNNEVANT et al., Respondents, v. MOCKSOUD et al., Appellants

Court of Appeals of Missouri, St. Louis

January 22, 1907

Appeal from St. Louis City Circuit Court.--Hon. Daniel G. Taylor Judge.

REVERSED AND REMANDED.

STATEMENT.--In 1904, defendants procured from the Louisiana Purchase Exposition Company, a concession to erect a theater building on what was known as the "Pike," and to give theatrical exhibitions therein during the exposition period ending December 1, 1904. On July 6, 1904, plaintiffs agreed and contracted with the defendants to furnish the material and erect the building for the sum of $ 4,733. The contract was in writing and contains, among others, the following provisions:

"Art VI. The contractor shall complete the several portions and the whole of the work comprehended in this agreement, by and at the time or times hereinafter stated, to-wit:

"The contractor shall have the building sufficiently advanced in fourteen days from the day the permit for its erection is granted by the Exposition Company, and have it entirely completed in twenty-two days from date of permit.

"The owner shall be allowed to install any work required during the erection of the building."

The building was completed but not until after the expiration of nineteen days from the date it was agreed it should be completed and turned over to defendants. After its completion defendants took possession of the building and used it as a theater until the close of the exposition. Two thousand three hundred and sixty-six dollars and fifty cents of the contract price for the building was paid, leaving a balance of $ 2,641.50 due. The suit is to recover this balance.

The answer (omitting caption) is as follows:

"Now come the defendants by leave of court and file this their joint amended answer to the plaintiffs' petition herein and therein filed.

"They deny each and every allegation of said petition.

"The defendants for further answer and cause of action and counterclaim against the plaintiffs herein say:

"That on the sixth day of July, 1904, the plaintiffs and defendants signed an agreement, whereby the plaintiffs agreed to provide all the materials and perform all the work for the erection and construction of a theater building in the west yard of 'Cairo' concession facing the Pike of the Louisiana Purchase Exposition, and have the building sufficiently advanced for occupation by defendants in fourteen days from the day the permit for its erection is granted by the Exposition Company (which permit was granted on the ___ day of July, 1904), and have it entirely completed in twenty-two days from said last mentioned date, for which defendants agreed to pay plaintiffs the sum of $ 4,733, to which $ 375 was subsequently added, making $ 5,108, one-half of the amount to be paid when the defendants' were given possession of the said building, and the balance within sixty days after the completion of the work.

"That defendants duly performed all the conditions thereof on their part; that plaintiffs entered upon the performance of the work under said contract upon its execution and obtained said permit, and began the erection of said theater building, but neglected to have the same sufficiently advanced for occupation by defendants in fourteen days from the day said permit was granted, and neglected to have the same entirely completed in twenty-two days thereafter, and plaintiffs neglected to keep their said agreement to complete said theater, and failed, neglected and refused so to do for a period of nineteen exposition days in which said theater could and but for said plaintiffs' neglect would have been run and made pecuniarily of great profit and advantage to defendants in that defendants lost the net profits of nineteen days' earning in running and operating said theater; which, measured by the net profits as made for nineteen days immediately after opening on the twenty-third of August, 1904, would amount to the sum of $ 2,385, which sum, together with the amount of $ 2,466.40, cash paid on said contract to plaintiffs deducted from the total amount of $ 5,108, would entitle the plaintiffs to the balance of $ 256.50, of all which the plaintiffs had due notice. That by reason of the plaintiffs' negligence, default and failure to complete said theater in the stipulated twenty-two days after said permit was granted, defendants were deprived of the use and occupancy thereof, and have been deprived of the said profits of said concession and said theater for the period of nineteen days and have been otherwise injured.

"That these defendants are actually damaged in said sum of $ 2,385 by plaintiffs as aforesaid, and they pray judgment therefor and that the same be set off against plaintiffs' claim.

"And for the balance of $ 256.50 due plaintiffs, defendants hereby offer to pay the same, and therefore pray to be hence dismissed."

Without hearing any evidence, and over the objection of the defendants, the court, on the motion of the plaintiffs, gave the following instruction to the jury:

"The court instructs the jury that it is admitted by the pleadings in this case that defendants are indebted to plaintiffs in the sum of $ 5,108, less the amount already paid, to-wit, $ 2,466.50, leaving a balance due plaintiffs from defendants of $ 2,641.50, for which amount you will return a verdict for plaintiffs, together with interest on same at six per cent per annum from April 15, 1905."

Whereupon the jury returned the following verdict:

"We the jury, in the above entitled cause, find in favor of the plaintiffs on the cause of action stated in the petition, and we assess its damages at the sum of $ 2,651.62."

And the court rendered judgment upon the verdict.

After this irregular proceeding, the court directed the defendants to proceed with their counterclaim.

J. E Neimy, one of the defendants (after testifying that the building was not turned over to them until August 20, 1904, and was opened as a theater three days thereafter, and that it should have been turned over to them, under the terms of the contract, on July 29, 1904) was asked in regard to the loss of profits by the delay in getting possession of the building. Upon objections interposed by the plaintiffs, the court said:

"I will state now that the court will have to rule against the defendants on the theory of loss of profits. If the court be in error I want the defendants to get the full benefit as to the ruling, which will, in all probability, be made against them. I do not want to interfere with the examination, but my view is, you cannot recover on the theory of loss of profits on the Pike. In other words, I do not think that you are entitled to recover upon anything which is so speculative as profits that would have been made in the management of a theatrical show. This is not on the theory that it is not, could not have been in the contemplation of the parties at the time of entering into it, but the theory that it is indefinite, impossible of making it definite."

Thereupon defendants took a nonsuit with leave to move to set the same aside. A timely motion to set aside the nonsuit was filed and overruled by the court, whereupon defendants appealed.

Judgment reversed and cause remanded.

E. J. O'Brien and Thomas H. Sprinkle for appellants.

(1) The defendants' damages herein are not speculative or remote, but were the immediate, necessary and natural result of the wrongful act of the plaintiff. Grieveaud v. Railroad, 33 Mo.App. 466. Probable profits from a legitimate element of damages, when their extent can be shown with reasonable certainty. Stewart v. Patten, 65 Mo.App. 21; Gildersleeve v. Overstoltz, 90 Mo.App. 518; Shouse v. Neiswanger, 18 Mo.App. 236; Dengler v. Auer, 55 Mo.App. 548; Ruff v. Rinaldo, 55 N.Y. 664; Industrial Works v. Mitchell, 114 Mich. 29; Satchwell v. Williams, 40 Conn. 371; Bontin v. Rudd, 82 F. 685; Clark v. Koerner, 61 S.W. 30; Wolff Shirt Co. v. Frankenthal, 96 Mo.App. 307; Morgan v. Ross, 74 Mo. 324; Brand v. Schuchman, 60 Mo.App. 70. (2) A party who has broken his contract cannot escape liability because of the difficulties there may be in finding a perfect measure of damages. Sutherland on Damages, sec. 704, p. 2136; Holt v. Mfg. Co., 136 Cal. 232; Greenleaf on Ev., p. 253; Hyatt v. Railroad, 19 Mo.App. 294; Smith v. Telegraph Co., 83 Ky. 104; Hunt v. Railroad, 1 L. R. A. 842, n.; Enc. Law and Pro., p. 109; Whyte v. McLaren, 151 Mass. 553.

Xenophon P. Wilfley and Joseph S. McIntyre for respondents.

(1) The claim of damages for the loss of profits should be disallowed when such damages are remote, uncertain and speculative. Taylor v. McGuire, 12 Mo. 204; Taylor v. McGuire, 13 Mo. 517; Calloway Mining & Mfg. Co. v. Clark, 32 Mo. 305; Wilson v. Russell, 91 Mo.App. 275; Geldersleeve v. Overstoltz, 90 Mo. 518; Connoble v. Clark, 38 Mo.App. 476; Ijams v. Life Assurance Assn., 185 Mo. 466; Wells v. National Life Assn. of Hartford, 53 L. R. A. 33. (2) When a voluntary nonsuit is taken, the party abandons his action, and no appeal can be taken. Williams v. Finks, 156 Mo. 507; Green County Bank v. Gray, 146 Mo. 568; Chouteau v. Rowse, 90 Mo. 191; McClure v. Campbell, 148 Mo. 96; Layton v. Riney, 33 Mo. 86.

OPINION

BLAND, P. J. (after stating the facts).--

1. In a suit at law for a money judgment, where there is but one count in the petition, and but one in a counterclaim filed, there can be but one judgment (R. S 1899, sec. 726). The plaintiffs' demand was admitted by the pleadings, hence there was nothing to submit to the jury but the issues raised by the counterclaim and the reply thereto. The direction to the jury, to return a verdict for the plaintiff for $ 2,651.62, was premature, and the procedure...