Gruetzner v. Aude Furniture Co.
Decision Date | 20 December 1887 |
Citation | 28 Mo.App. 263 |
Parties | AUGUST GRUETZNER, Respondent, v. AUDE FURNITURE COMPANY, Appellant. |
Court | Missouri Court of Appeals |
APPEAL from the St. Louis Circuit Court, HON. GEORGE W. LUBKE Judge.
Reversed.
CHRISTIAN & WIND, for the appellant: A contract for personal services must be fully performed before the servant or person employed can recover anything. Wood on Master and Servant sec. 147, pp. 291, 293, and 294, note 2; Edwards on Bailments, sec. 437; Earp v. Tyler, 73 Mo. 617; Posey v. Garth, 7 Mo. 95; Henson v Hampton, 32 Mo. 408; Caldwell v. Dickson, 17 Mo. 575; Schnerr v. Lemp, 19 Mo. 40; Hamel v. Freund, 17 Mo.App. 618; Downs v. Smit, 15 Mo.App. 583. There was a contract for the performance of a particular service or thing. Stout v. St. Louis Tribune Co., 52 Mo. 342; Chambers v. King & Tunstall, 8 Mo. 517; White v. Wright, 16 Mo.App. 551; Fox v. Pullman Car Co., 16 Mo.App. 128.
JAMES J. MCBRIDE, for the respondent: The respondent was entitled to recover the reasonable value of his work and labor, not exceeding the contract price, less such damage as might have been proved to have resulted from his breach of contract. Yeats v. Ballantine, 56 Mo. 530; Eyermann v. Cemetery Association, 61 Mo. 489; Eldridge v. Rowe, 7 Ill. 96.
The plaintiff brought an action before a justice of the peace on the following account:
Judgment being rendered in favor of plaintiff, defendant appealed to the circuit court, where the case was tried by the court without the intervention of a jury. The defence rested on the ground that the work was done under a special contract, which the plaintiff had voluntarily abandoned, and that there could be no recovery on a quantum meruit. The court overruled defendant's demurrer to the evidence, and made the following special finding and verdict, which are embodied in the record:
From this judgment the defendant appeals and assigns for error that the conclusions of law applied by the court to the facts found are erroneous.
One who sues upon a contract for personal services must show that the services have been fully performed, or that their performance has been prevented by the act of God, or the unwarranted act of his employer. In case of wilful abandonment of the contract by the servant or employe there can be no apportionment of the contract. Such has always been the rule at common law, both as to menial services and services in the nature of a bailment locatio operis faciendi. In the latter case if the thing is left imperfect and unfinished by the fault of the workman he can recover nothing, but if not by his fault he shall have compensation pro tanto, subject to setoff. Wood on Master and Servant, 291, 293, 294 note 2; Edwards on Bailments, sec. 437. Such has always been the law of this state, whether the contract was one for a definite period or for the performance of a particular service. Posey v. Garth, 7 Mo. 95; Caldwell v. Dickson, 17...
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