Haysler v. Owen

• Decision Date: 31 October 1875
• Citation: 61 Mo. 270
• Parties: G. C. HAYSLER, et al., Respondents, v. W. H. OWEN, Appellant.
• Court: Missouri Supreme Court

61 Mo. 270

G. C. HAYSLER, et al., Respondents,

v.W. H. OWEN, Appellant.

Supreme Court of Missouri.

October Term, 1875.

Appeal from Henry County Circuit Court.

M. A. Fyke, for Appellant.

I. The first instruction given for plaintiff was wrong. 1st There was no acceptance in this case of the stable, which would amount to waiver. The case was not such. (Yeats vs. Ballentine, 56 Mo., 530.) 2d. The compliance with the contract, necessary to enable plaintiff to recover the amount claimed, must have been, not a “fair and substantial,” but a literal compliance. (Barker vs. Troy & Rutland R. R., 27 Vt., 780.)

II. The third instruction given for plaintiff was clearly wrong. The measure of damages was not the difference between the roof agreed to be put on and its actual value in its condition when completed, as the evidence shows that it could not have been repaired without taking a great portion of it off. (Bragg vs. Town of Bradford, 33 Vt., 35; Barker vs. Troy & Rutland R. R., supra.)

McBeth & Price, for Respondents.

Instructions one and two, given for plaintiff, declare the correct rule as to measure of damages. (Marsh vs. Richards, 29 Mo., 99; Fink vs. Fatman, 10 Am. Rep., 21; S. C. 36 Ind., 259; Smith vs. Brady, 17 N. Y., 178; Dermot vs. Jones, 23 How. [U. S.] 220; Smith's Lead. Cas., top p. 36, side p. 18.) Respondents were entitled to recover the actual value of the work done by them and received by defendant, within the limits of the contract price, and the benefit and advantage which defendant took by the work done was the amount of value which he received after deducting the amount of damage. (Lamb vs. Brolaski, 38 Mo., 53; Britton vs. Turner, 6 N. H., 494; Lee vs. Ashbrook, 14 Mo., 378.)

The two instructions refused defendant were clearly erroneous. The injuries to the property in the stable, and trouble and labor of removing them, were not properly a subject of damage and could have been averted at a trifling expense. (Douglass vs. Stephens, 18 Mo., 362; Sedgw. Dam., § 65.)

The roof was accepted and used by defendant, and after full opportunity on his part, to test its soundness, he paid part of the price therefor and gave his note for the remainder. This was an acknowledgment that plaintiff had complied with his contract, and that the balance was due him. Besides, the evidence shows that whatever defects in the roof existed, might have been repaired in two days. His failure to repair was therefore contributory negligence, for damages resulting from which he cannot recover.

HOUGH, Judge, delivered the opinion of the court.

This was a suit on a promissory note for one hundred and eighteen dollars, given by the defendant to the plaintiffs in February, 1873, for a balance claimed by plaintiffs to be due to them from the defendant for work and labor done and materials furnished, in the construction of a sheet-iron and galvanized iron roof upon a livery stable belonging to the defendant in the town of Clinton, Henry county, Mo. The defendant pleaded that said roof was constructed in a negligent, unskillful and unworkmanlike manner, and of inferior materials, in consequence whereof it leaked, and defendant's hay was wet, and his wall damaged, and he was put to inconvenience in the necessary removal of his stock from one portion of his stable to another, for all of which he claimed damages by way of recoupment, in the sum of $500. The plaintiffs denied the alleged negligence and injury, and the testimony on the issues thus made was conflicting.

There was a verdict and judgment for the plaintiffs for $64.62, from which defendant has appealed to this court.

The first instruction given at the instance of the plaintiff told the jury that if the defendant accepted the work and made payments therefor from time to time, and gave the note in suit for the balance, and the work done was a fair and substantial compliance with the contract, they should find for the plaintiffs.

As to the measure of damages, in the event the jury should find that the work was not done according to contract, they were told that such measure was “the difference between the value of the roof agreed to be put on and the one actually put on.”

The court refused an instruction asked by the defendant, which included in the estimate of the defendant's damages the injuries sustained by him from the wetting of the hay, and from having to remove the horses and buggies, but gave another at his request which allowed the jury to set off against the note any damages which they might find the defendant had sustained by reason of the defective construction of the roof.

This last instruction was improper, as it substituted the opinion of the jury for the established rules of law, and was also in conflict with the instruction given by the court of its own motion.

As to whether the instruction asked by the defendant and refused by the court, should have been given, there is some doubt. The damages are consequential, but not too remote, and are set forth in the petition. But the facts by which the propriety of giving such an instruction should be determined seem...