Hicks v. National Surety Company

• Decision Date: 07 December 1914
• Citation: 172 S.W. 489,185 Mo.App. 500
• Parties: OLIVER D. HICKS, Respondent, v. NATIONAL SURETY COMPANY, Appellant
• Court: Kansas Court of Appeals

172 S.W. 489

185 Mo.App. 500

OLIVER D. HICKS, Respondent, v. NATIONAL SURETY COMPANY, Appellant

Court of Appeals of Missouri, Kansas City

December 7, 1914

Appeal from Linn Circuit Court.--Hon. Fred Lamb, Judge.

Judgment reversed and cause remanded. (with directions).

Frank Hagerman, E. E. Ball and Clyde Taylor for appellant.

(1) Upon the whole record plaintiff is not entitled to recover the demurrer to plaintiff's evidence should have been sustained. The declaration of law that plaintiff was not entitled to recover as requested at the close of all the evidence should have been made. The finding and judgment should have been for defendant. Hicks v. Surety Co., 169 Mo.App. 487, 9 Cyc. 95; Horton v. Ins. Co., 151 Mo. 604; Lucas v. Western Union Tel. Co., 131 Ia 669, 109 N.W. 191, 6 L.R.A. (N. S.), 1016; Crohn v. U. C T., 170 Mo.App. 279. (2) There were no profits to be made under the proposed contract, therefore, plaintiff has lost none. Bradner v. Powder Co., 115 Mo.App. 102; Tenzer v. Gilmore, 114 Mo.App. 210; Lally v. Campwell, 40 Mo.App. 44; Boland v. Glendale Quarry Co., 127 Mo.App. 520; Estes v. Shoe Co., 155 Mo. 577; Ross v. Pants Co., 170 Mo.App. 291; Sedgwick on Damages, sec. 667. (3) The court committed reversible error in overruling the motion to require plaintiff to elect, both at the opening of the case and at the conclusion of plaintiff's evidence. Hicks v. Surety Co., 169 Mo.App. 496; Asbury v. Hicklin, 181 Mo. 670. (4) The court erred in refusing to make each and every finding of fact and conclusion of law requested by defendant. Sec. 1972, R. S. Mo. 1909; Hamill v. Talbott, 72 Mo.App. 22; Assurance Co. v. Tribble, 86 Mo.App. 546; Bailey v. Emerson, 87 Mo.App. 220; Fahy v. Grocery Co., 57 Mo.App. 73.

Bresnehan & West, James E. Watkins and Paul D. Kitt for respondent.

(1) Upon the record plaintiff is entitled to recover. The finding and judgment was for the right party. Hicks v. National Surety Co., 169 Mo.App. 479. (2) Under the evidence and finding the profits which would have accrued to plaintiff exceeded the judgment. Loss of profits is the correct measure of damages, and this cannot be lessened or mitigated by what plaintiff might have made outside. Crescent Manufacturing Co. v. Nelson Manufacturing Co., 100 Mo. 325; Hicks v. National Surety Co., 169 Mo.App. 479; 13 Cyc. 161; Gabrin v. Brick Co., 57 Mo.App. 528. (3) The defendant's motion to elect came too late after answer and issue joined. Barrie v. United Railway Co., 138 Mo.App. 640. (4) Defendant waived its motion to elect by pleading to the merits and going to trial. After answer and trial it is too late to consider any objection less serious than want of jurisdiction, and failure to state facts constituing a cause of action. Dakan v. Mercantile Co., 197 Mo. 270; White v. Railroad, 202 Mo. 539.

OPINION

ELLISON, P. J.

.--This is an action for damages in which plaintiff recovered in the trial court the sum of seven hundred dollars.

The United States Government, in the year 1910, desired to let a contract for carrying the mail to and from the post office and to and from the railway trains at Chillicothe, Missouri. To that end it advertised for bids which were to be made and filed in the office of the Post-Master General at Washington by 4:30 p. m. of December 6, 1910. The service was to be for four years, beginning July 1, 1911, and ending June 30, 1915. Bids were to be accompanied by an application and a bond with surety. Defendant was a surety company acceptable to the department. On November 28, 1910, plaintiff made out his bid in the sum of $ 1485 per year and his application to defendant to become his surety and signed a bond furnished by defendant and delivered these papers by mail to defendant's agent at Kansas City, Missouri with $ 10 advance on premium. The latter delivered them by mail, to defendant at Washington and it refused to sign the bond in time to have notified plaintiff at Chillicothe for him to have gotten other surety and filed his bid and bond before bids were closed at Washington. Plaintiff's bid was the lowest and the evidence tended to show that if he had gotten it filed in time he would have secured the contract. Thus failing to get the contract, he brought this action in damages for loss of net profits.

This is the second appeal; the first is reported in 169 Mo.App. 479, where a full history of the case will be found. On the first appeal we held, in an opinion by Judge TRIMBLE, that there was no evidence of an express contract to sign the bond, or if rejected, to notify plaintiff. We further held that defendant, having received plaintiff's application for a bond and ten dollars of his money, with full knowledge of the date for closing the reception of bids, there was an implied contract on its part, if it refused to sign, to notify plaintiff of its refusal, if it could reasonably do so, in time for him to get other sureties and file with the department before bids were closed.

In finding that defendant could have notified plaintiff in time for him to have secured other surety and filed his bid, we concede that we are requiring promptness of action by the parties concerned; but since we think the evidence tends to show it could reasonably have been done we feel justified, in the circumstances, in saying that there should have been promptness on defendant's part; and on account of personal interest, to say nothing of the tendency of the evidence in that line, in assuming that plaintiff would have been quick to serve that interest.

This conclusion brings us to the consideration of the measure of damages. The action was brought the 18th day of August, 1911 and was tried, the last time, the 8th of October, 1913. As already stated, plaintiff's contract of service began the 1st of July, 1911, and would have ended the 30th of June, 1915, from which it appears that he begun the action near four years before the service was to terminate and the case was tried near two years before that time.

The contract expressly required plaintiff's personal service and it therefore seems to us that, by analogy, the measure of damage is the same as where a servant employed for a definite time is wrongfully discharged before the time expires. In the latter case, where the action is also brought before the time expires, and the contract treated as continuing, the amount agreed to be paid for the full period is primafacie, the damage suffered; but it may be reduced by the sum afterwards earned by plaintiff before trial and which he can reasonably earn after trial up to the date of the end of the employment. There is great difference of opinion among the courts which have considered the question, but the rule just stated has been laid down by the Supreme Court of this State (Ream v. Watkins, 27 Mo. 516; Lambert v. Hartshorne, 65 Mo. 549; Boland v. Glendale Quarry Co., 127 Mo. 520, 30 S.W. 151, followed by the Courts of Appeals in Halsey v. Memrath, 54 Mo.App. 335 and Miller v. Boot & Shoe Co., 26 Mo.App. 57) and it is supported by a great number of authorities in other jurisdictions, of the highest standing. The most recent discussion of the subject was by this court in Ross v. Grand Pants Co., 170 Mo.App. 291. The objection to this rule (as pointed out in those cases contra) is its uncertainty, since it cannot be known but that the servant who sues immediately on his discharge, may die the next day after he obtains damages for the full term of service; nor can it be known, in case he lived to the end of the service, how much he would have earned at other work; may be as much, or more, than he would have received under his contract. But this objection has been met by the suggestion that difficulty of proof, or estimate of loss, ought not to affect the right; and that the same difficulty of exactness--the same partial lapse into conjecture, is found in many actions, notably future loss in personal injury. On this subject the Supreme Judicial Court of Massachusetts, said: "The plaintiff's cause of action accrued when he was wrongfully discharged. His suit is not for wages, but for damages for the breach of his contract by the defendant. For this breach he can have but one action. In estimating his damages the jury have the right to consider the wages which he would have earned under the contract, the probability whether his life and that of the defendant would continue to the end of the contract period, whether the plaintiff's working ability would continue, and any other uncertainties growing out of the terms of the contract, as well as the likelihood that the plaintiff would be able to earn money in other work during the time. But it is not the law that damages which may be larger or smaller because of such uncertainties are not recoverable." [Cutter v. Gillette, 163 Mass. 95, 39 N.E. 1010.] The Supreme Court of New Jersey expressed itself thus: "The trial judge properly instructed the jury as to the legal principles which should govern them in making up their verdict by directing them that they should first consider the amount the plaintiff would have earned if he had remained in the defendant's employ for the full term of the contract; that they should then take into consideration the fact that after his discharge his time became his own, and that it was his duty to utilize that time in endeavoring to obtain employment elsewhere; that they should further consider what the reasonable prospect of his getting such employment was, in view of his age and state of health, and deduct from the total amount payable under the contract such sum as in their judgment the plaintiff might reasonably earn up to the expiration of the time for which the contract was yet to run." [Moore v. Central Foundry Co., 68 N.J.L. 14, 52 A. 292.] The Supreme Court...