George S. Howell & Co. v. Dickerson

• Decision Date: 02 January 1904
• Citation: 78 S.W. 655,104 Mo.App. 658
• Parties: GEORGE S. HOWELL & CO., Respondent, v. JEROME DICKERSON, Appellant
• Court: Kansas Court of Appeals

78 S.W. 655

104 Mo.App. 658

GEORGE S. HOWELL & CO., Respondent, v. JEROME DICKERSON, Appellant

Court of Appeals of Missouri, Kansas City

January 2, 1904

Appeal from Polk Circuit Court.--Hon. Argus Cox, Judge.

Cause affirmed.

C. H Skinker and G. A. Watson for appellant.

(1) When an action is brought on a contract, a performance of its terms in every essential particular must be shown, before a recovery can be sustained. March v. Richards, 29 Mo 99; Eyerman v. Cemetery Ass'n, 61 Mo. 489. Plaintiff must allege and prove performance on his part of the whole contract. St. Louis v. McDonald, 10 Mo 609; Billups v. Daggs, 38 Mo.App. 367. There is therefore a total failure of proof of performance on the part of plaintiff of an essential part of the contract. There were some other guesses made by the witness as what they might have done, but what they did do, stands an indisputable witness against them. (2) The plain letter of the contract shows Howell & Co. were to receive and pack the apples in barrels, the labor and barrels to be paid for by them. This instruction directs the jury to ignore this provision of the contract and directs the jury to allow as damages the difference between the price of the apples in the orchard and the price in barrels at the market, thus requiring the defendant to pay for the barrels and for the packing. (3) The court endeavored to cure the error of this instruction by directing a remittitur of $ 198.35 but we submit that it is impossible for the court to arrive at the amount of damages allowed by the jury on account of this erroneous instruction. How many barrels did the jury find that the orchard contained?

Patterson & Patterson for respondent.

(1) The evidence as to the market value of apples on October 1st, was given with reference to the Springfield market on that date. (2) Our position is that this instruction, when considered in connection with the above excerpts of the record, is good as far as it goes. Instructions which are good as far as they go, but do not cover the whole case, amount, in civil cases only to nondirection and not to error, and it is the duty of the other party to ask proper instruction to supply the shortcomings of those asked by his adversary. Bank v. Ragsdale, 171 Mo. 186; Geisman v. Electric Co., 173 Mo. 655; Tethrow v. Railroad, 98 Mo. 74; Hall v. Hall, 107 Mo. 101; Mitchell v. Bradstreet, 116 Mo. 226; Nolan v. Johns, 126 Mo. 159; Warder v. Henry, 117 Mo. 538; Doyle v. Railroad, 113 Mo. 280. (3) A respondent will be permitted to enter a remittitur in the Supreme Court to cure an error in the amount of his verdict. Warder v. Henry, 117 Mo. 530; Noble v. Blount, 77 Mo. 239. An excessive verdict may be remedied by a remittitur in the Supreme Court. Crawford v. Doppler, 120 Mo. 362; State ex rel. v. Hope, 121 Mo. 34; Trustees, etc., v. Hoffman, 95 Mo.App. 500; Rosenfeld v. Seigfred, 91 Mo.App. 184; Chitty v. Railway, 148 Mo. 77-80; Ice Co. v. Max Tamm, 90 Mo.App. 201; Swafford v. Pratt, 93 Mo.App. 638; Keen v. Schnedler, 92 Mo. 527.

OPINION

BROADDUS, J.

This suit is founded upon the following contract, to-wit:

"This contract made on the 16th day of September, 1901, between Geo. S. Howell & Co., and Jerome Dickerson, witnesseth: That for and in consideration of the sum of five hundred dollars paid by said Geo. S. Howell & Co., and the further considerations herein named, Jerome Dickerson has sold to the said Geo. S. Howell & Co., all apples growing in the orchard of said Dickerson, situate three miles north of Springfield, Missouri, containing forty-six acres, and bounded on the north by Lyman and on the east by Garlick, which come within the following specification: that is to say, all apples in said orchard which shall measure two and one-fourth inches in diameter and be free from rot. No apple shall be rejected on account of any blemish, wormhole or insect sting appearing on the same unless same shall also be affected with rot. The said Dickerson shall pick and deliver said apples at the city of Springfield at such place as the said Howell & Co. shall designate within the limits of said city. Said delivery shall begin on the first day of October, 1901. The said Geo. S. Howell & Co. agree to pay the said Dickerson for said apples the sum of $ 2 per barrel of three bushels each, the said apples to be received and barrelled by the said Howell & Co. The said Howell & Co. agree to receive and barrel 150 barrels per day; the barrels to be furnished and paid for by said Howell & Co. The said Howell & Co. agree to pay for each 100 barrels when delivered and the said $ 500 this day paid shall be considered as payment for the last hundred and fifty barrels delivered under this contract. And should the said Howell & Co. fail or refuse to carry out their part of this contract the said $ 500 shall be retained by said Dickerson as liquidated damages for such failure. (Signed in duplicate Sep. 16, '01.) Jerome Dickerson, Geo. S. Howell & Co., by Geo. S. H."

The petition alleges that the plaintiffs paid the $ 500 mentioned and offered to comply with the terms of the contract but that defendant failed to so do on his part; and that he drove plaintiffs' employees from the orchard and failed and refused to pick and deliver the apples and retained the $ 500 paid him.

There was evidence that on the last day of September the parties began picking and packing the apples, and that plaintiffs' employees were grading them down, as provided in the contract, but...