Koeltz v. Bleckman

• Decision Date: 31 July 1870
• Citation: 46 Mo. 320
• Court: Missouri Supreme Court
• Parties: AUGUST KOELTZ, Defendant in Error, v. BLECKMAN & HORN, Plaintiffs in Error.

46 Mo. 320

AUGUST KOELTZ, Defendant in Error,

v.BLECKMAN & HORN, Plaintiffs in Error.

Supreme Court of Missouri.

July Term, 1870.

Error to First District Court.

Edwards & Son, and Flanagan, for plaintiffs in error.

I. Plaintiff could not recover on this contract until he had delivered the whole of the 2,000 bushels. (Champlin v. Rowley, 18 Wend. 187; Paige v. Ott, 5 Denio, 406; McKnight v. Dunlap, 5 Barb. 36; 5 N. Y. 527; Helm v. Wilson, 4 Mo. 41; 16 Ohio, 238.) The English doctrine of part performance, as laid down in Oxendale v. Wetherell, 9 Barn. & Cress. 386, has not been adopted in this State; and in New York it has been criticised with unmeasured severity by Mr. Chancellor Walworth in Champlin v. Rowley, 18 Wend. 187.

II. The jury wholly misapprehended the case, or were so blinded by prejudice that they could not see the case in its proper light, and a new trial should be granted, notwithstanding the large sum remitted by the plaintiff. Such a verdict should not have been permitted to stand for a moment.

McCord & Miller, and Ewing & Smith, for defendant in error.

WAGNER, Judge, delivered the opinion of the court.

The doctrine contended for by the counsel for the plaintiffs in error, that an entire performance of the whole contract by the defendant in error was a condition precedent to a recovery by him for any part of the wheat delivered, can not be maintained. That was the ancient rule, but a more just and equitable principle now prevails in this State. The reasonable doctrine has long since prevailed here, that where a vendor has failed to wholly comply with his part of the contract, yet if the vendee has received and made use of part of the property purchased, and is benefited by it, he must still pay for the property so received and used, the value, not to exceed the contract price, if that value exceeds the damage he has sustained by reason of the failure to complete the contract. (Lee v. Ashbrook, 14 Mo. 378.) In such cases the party injured is compensated in damages. And the law is well established that where the vendor agrees to sell and deliver personal property at or within a particular time, and fails to perform his contract, the measure of damages is the difference between the contract price and the market value at the time it should have been delivered. (Northrup v. Cook, 39 Mo. 208.) By the terms of the contract, the plaintiff was to deliver to the defendants 2,000 bushels of wheat, for which they agreed to pay him $2.50 a bushel, making $5,000 for the whole lot. All the wheat was not delivered, and the evidence shows that after the contract was made, wheat greatly advanced in the market. The defendant paid $2,420 on the wheat received, and this action was brought by the plaintiff claiming $2,308 as the balance remaining due. The answer asked for damages on account of breach of the contract, and also set up an offset for sacks and sack hire.

The jury returned a verdict for the plaintiff for the sum of $2,879, whereupon he remitted $1,500,...