Kansas City v. Boyer

• Decision Date: 09 April 1918
• Docket Number: No. 18836.,18836.
• Citation: 202 S.W. 1086
• Parties: KANSAS CITY v. BOYER et al.
• Court: Missouri Supreme Court

202 S.W. 1086

KANSAS CITY v. BOYER et al.

No. 18836.

Supreme Court of Missouri, Division No. 2.

April 9, 1918.

Rehearing Denied April 26, 1918.

Appeal from Circuit Court, Jackson County; William O. Thomas, Judge.

Action by the City of Kansas City against J. I. Boyer and another. Judgment for defendants, and plaintiff appeals. Affirmed. Plaintiff sued defendants on a bond for $10,000 given to secure the performance of a contract made by defendant Boyer with the city for the removal of garbage made within the city. There was a finding and judgment for defendant, and the plaintiff has appealed. The petition alleged a breach of the contract by Boyer. The answer denied such breach. The cause was tried to the court without a jury.

Plaintiff introduced evidence tending to show a breach of the contract by Boyer, and to show that the city, by such failure of Boyer to comply with his contract, was compelled to make another contract with another party for the removal of such garbage during the unexpired part of the term of said contract; that new contract in some particulars was different from the contract with Boyer. Under the new contract the city paid about $16,000 more than it would have paid under the Boyer contract.

Defendant introduced evidence tending to disprove any breach by Boyer of his contract. After hearing the evidence, the court, without any request therefor by either party and over plaintiff's objection, made in writing the following so-called finding of fact and declaration of law:

"The court finds from the pleadings and the evidence that there was a substantial failure of performance of his contract by defendant Boyer in February, 1913, and prior thereto; that the contract made by the city for the unexpired term of the Boyer contract and the payments thereunder constitutes the only basis for measuring the damages, if any, claimed by the plaintiff in this action. And the court further finds as a fact that the terms and conditions of said contract differ materially from those of the Boyer contract for the performance of which the bond sued on was given. Wherefore the court declares the law to be that under the pleadings and the evidence and the above finding of fact the verdict must be for the defendants."

To which the plaintiff excepted. Thereupon the court found the issues for the defendant as follows:

"Thereupon the court found the issues in favor of the defendants, and judgment entered accordingly."

J. A. Harzfeld and A. F. Smith, both of Kansas City, for appellant.

ROY, C. (after stating the facts as above).

I. No point is made in this court on the admission or exclusion of evidence or on the giving or refusal of instructions. Appellant insists that, as the court in its finding of fact and declaration of law found that defendant Boyer breached his contract, plaintiff should have been allowed at least nominal damages and a judgment accordingly.

Since this case was tried this court, in Advertising Co. v. Castleman, 265 Mo. 345, 177 S. W. 597, approved the dissenting opinion of Reynolds, P. J., in the same case in the St. Louis Court of Appeals, reported in 165 Mo. App. 575, 148 S....