Hughes v. Bilby

• Citation: 198 S.W. 179
• Decision Date: 05 November 1917
• Docket Number: No. 12553.,12553.
• Parties: HUGHES v. BILBY.
• Court: Court of Appeal of Missouri (US)

198 S.W. 179

HUGHES v. BILBY.

No. 12553.

Kansas City Court of Appeals. Missouri.

November 5, 1917.

Appeal from Circuit Court, Nodaway County; John M. Dawson, Judge.

"Not to be officially published."

Action by Oma M. Hughes against J. Ed. Bilby. From a judgment for plaintiff, defendant appeals. Affirmed.

Wright & Ford, of Maryville, for appellant. Ellis G. Cook, of Maryville, for respondent.

BLAND, J.

Plaintiff entered into a written contract with the defendant, wherein it was provided that plaintiff was to solicit oil leases and take them in her own name, and when a sufficient acreage was obtained she was to assign a three-fourths interest to defendant, retaining a fourth interest. The defendant was to pay plaintiff's legitimate expenses in securing the leases, the money to pay down on the leases when the leases were taken, a fair daily wage to plaintiff, all notary fees incurred by plaintiff in the work, and plaintiff's railway and traveling expenses when it became necessary for plaintiff to go home. In pursuance of such contract plaintiff went to Scott City, Kan., and proceeded to carry out her part of the contract, but the defendant failed to carry out his part of the contract, in that he failed to pay plaintiff's wages, expenses, and the notary fees. Plaintiff worked 110 days and the value of her services was $5 per day, and she spent for expenses $300 of her own money. The only money the defendant ever advanced to plaintiff was the sum of $50. Finally, defendant notified the plaintiff that he was broke and could not further carry out his side of the agreement. Plaintiff brought suit for the value of her services and for expense money, and recovered a judgment in the sum of $700.

Defendant objects to the instruction given for plaintiff, which declared that, even if plaintiff did not fully carry out her part of the contract with the defendant, this was no defense to plaintiff's claim if the jury found that it was through no fault of hers that she was prevented from carrying out her part of the contract, and that if they found that without her fault she was prevented by the defendant from carrying out her part of the contract, then they could find for the plaintiff for her services and expenses.

Defendant urges that the giving of this instruction was error, in that defendant says the petition alleges full performance of the contract on the part of the plaintiff and a breach on the part of the defendant, and not that plaintiff failed to perform her part of the contract on account of her inability to so perform it by reason of defendant's breach, and that, consequently, the instruction does not follow the cause of action alleged in the petition. We do not put the construction upon the petition claimed by the defendant. The petition was not brought upon the contract, but alleges a cause of action, waiving the contract and suing upon the quantum meruit. The defense made at the trial was that plaintiff failed to perform her part of the...