Franklin Motor Car Co. v. Kast
| Decision Date | 02 June 1913 |
| Parties | FRANKLIN MOTOR CAR CO. v. KAST. |
| Court | Missouri Court of Appeals |
Appeal from Circuit Court, Jackson County; T. J. Seehorn, Judge.
Action by the Franklin Motor Car Company against Fred J. Kast. From a judgment for plaintiff, had in the circuit court on appeal from a justice court, defendant appeals. Affirmed.
Wm. B. Yoder and Halbert H. McCluer, both of Kansas City, for appellant. Percy C. Field, of Kansas City, for respondent.
Plaintiff's action was begun before a justice of the peace by filing the following account: "To commission on sale of model H. D. Maxwell automobile to C. L. Eggert, sale made about November 15, 1909, $90." On appeal to the circuit court, plaintiff had judgment.
The evidence showed that defendant was the owner of an automobile and wanted to buy a new one if he could sell the one he had. Plaintiff was a dealer in automobiles, and defendant made a verbal contract with him whereby he (defendant) agreed that if plaintiff would sell the old machine defendant would buy a new machine of him. Plaintiff, in carrying out this contract, thereafter sold the old machine, but defendant failed to abide by his part of the contract by refusing to buy a new machine of plaintiff. The sole defense is that plaintiff's action should have been for damages by reason of defendant refusing to carry out his contract. Or, if the action be on a quantum meruit, the contract consideration would limit the amount of recovery.
But in this case it will be observed that defendant, after part performance by plaintiff, abandoned the contract by refusing to allow him to complete it by selling him a car. In such case plaintiff has two remedies: He may sue for the breach and recover damages, or he may himself abandon the contract and recover on indebitatus assumpsit the reasonable value of his service. McCullough v. Baker, 47 Mo. 401. If a party plaintiff under special contract has performed service for another which has been received and is of value to the latter, and the plaintiff has...
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