May v. Crawford

• Decision Date: 14 June 1899
• Citation: 51 S.W. 693,150 Mo. 504
• Parties: May et al., Appellants, v. Crawford et al
• Court: Missouri Supreme Court

51 S.W. 693

150 Mo. 504

May et al., Appellants, v. Crawford et al

Supreme Court of Missouri, First Division

June 14, 1899

Appeal from St. Louis City Circuit Court. -- Hon. Leroy B. Valliant Judge.

Reversed and remanded (with directions).

R. E Rombauer and Chas. W. Bates for appellants.

(1) Where a judgment is reversed and the cause is remanded, the rulings of the appellate court become the law for the retrial of the cause. State v. Newkirk, 49 Mo. 472; Gamble v. Gibson, 83 Mo. 290; Coquard v Prendergast, 47 Mo.App. 243; State ex rel. v. St. Louis Circuit Court, 41 Mo. 574; Hurck v. Erskine, 50 Mo. 110; Treadway v. Johnson, 39 Mo.App. 176. The Supreme Court in this case decided that the sum of five thousand dollars, under the facts shown in evidence, was liquidated damages, and the trial court erred by not following that ruling. May v. Crawford, 142 Mo. 390. (2) Whether a certain sum mentioned in a contract should be treated as a penalty or as liquidated damages, is a question of law and not a question of fact. Moore v. Platte County, 8 Mo. 467; Gower v. Saltmarsh, 11 Mo. 271; Hempler v. Schneider, 17 Mo. 528; Basye v. Ambrose, 28 Mo. 39; Walker v. Engler, 30 Mo. 130; Hammer v. Breidenbach, 31 Mo. 49; Morse v. Rathburn, 42 Mo. 594; Hamaker v. Schroers, 49 Mo. 406; Cochrane v. Railroad, 113 Mo. 359; May v. Crawford, 142 Mo. 390. The Supreme Court in declaring upon the first appeal that such sum constituted liquidated damages, was in harmony with adjudications in other States. Tode v. Gross, 127 N.Y. 481; Kelsoe v. Reid, 145 Pa. St. 606; Cushing v. Drew, 97 Mass. 455; Sanders v. Carter, 91 Ga. 450. (3) It was error to submit questions of law to the jury. Carroll v. Campbell, 110 Mo. 571; Brannock v. Elmore, 114 Mo. 64; Woods v. Campbell, 125 Mo. 573. Under this rule the instruction to the jury given by the court of its own motion was error, because it submitted to the jury the construction of the contract sued on, and the construction of the printed advertisements constituting the breach of said contract, and submitted to them the legal effect of the evidence. Young v. Byrd, 124 Mo. 598; Hunt v. Railroad, 75 Mo. 255; Blakely v. Benneke, 59 Mo. 195; New Madrid Co. v. Phillips, 125 Mo. 66. (4) The court erred in permitting one of the defendants, Dugald Crawford, to testify that defendants had not advertised for sale any other articles as Famous stock than those which defendants bought. Hurt v. Railroad, 94 Mo. 260; Madden v. Railroad, 50 Mo.App. 673; Mulherin v. Simpson, 124 Mo. 618.

W. B. Homer for respondents.

(1) There was no error in submitting the question of breach of the contract under the instruction drawn by the court. The advertisements offered in evidence by the plaintiff were simply the foundation of an inference of a fact, which was to be determined by the trier of facts, taking into consideration not only the documents themselves but the circumstances surrounding the facts as well, and all the evidence which was offered in the case, whether oral or written. Primm v. Haren, 27 Mo. 205; Wilson v. Board of Education, 63 Mo. 142; Mantz v. Maguire, 52 Mo.App. 146; Bass v. Jacobs, 63 Mo.App. 396; Blanke v. Dunnermann, 67 Mo.App. 596; McGinness v. Knapp, 109 Mo. 149; Wagner v. Printing Co., 45 Mo.App. 6; Walker v. Hoeffner, 54 Mo.App. 560. (2) The court did not err in submitting the question to the jury whether or not there was any material or substantial damage. In a case where the plaintiff can show no damage or only nominal damages the amount stated will be treated as a penalty. May v. Crawford, 142 Mo. 390; Hathaway v. Lynn, 75 Wis. 186; Quinn v. U.S. 9 Otto 30; Eva v. McMahon, 77 Cal. 467; Bignall v. Gould, 119 U.S. 498. (3) It may be stated as a general rule of application, that a stipulation for the payment of a specified sum, on the breach of a contract, in which it is contained, is to be treated as a penalty rather than as liquidated damages, if the intention of the parties as to its effect appears to be at all doubtful, or is of equivocal interpretation. Moore v. Platte Co., 8 Mo. 473; Tinkham v. Satori, 44 Mo.App. 663; Wilson v. Mayor of Baltimore, 83 Md. 203; Smith v. Brown, 164 Mass. 585; Smith v. Wedgewrite, 74 Me. 460; Foley v. McKeegan, 4 Ia. 6; Goodyear v. Selz, 157 Ill. 191; Burrill v. Daggett, 77 Me, 545; Smith v. Wainwright, 25 Vt. 97; Lansing v. Dodd, 45 N. J. L. 525; Wilhelm v. Eaves, 21 Or. 199; Cushing v. Drew, 97 Mass. 446; Bagley v. Peddie, 16 N.Y. 469; Condon v. Kemper, 47 Kan. 130; Shute v. Taylor, 5 Met. 61; Hoag v. McGinnis, 22 Wend. 165; Farrar v. Beeman, 63 Tex. 175; Chadwick v. Marsh, 21 N. J. L. 467; Baird v. Taylor, 6 Humph. 186; Jemmison v. Gray, 29 Ia. 547; Curry v. Larer, 7 Pa. St. 473; Robeson v. Whitesides, 16 S. & R. 322. (4) The burden of proof will be on him who claims that a provision, for the payment of a specified sum, is liquidated damages, to show that it was intended as such by the parties. 2 Greenl. on Evid. (Lewis' Ed. 1896), sec. 257; Tinkham v. Satori, 44 Mo.App. 664; Keck v. Bieber, 148 Pa. St. 646; Smith v. Wainwright, 24 Vt. 297; March v. Allabough, 103 Pa. St. 342; Shute v. Taylor, 5 Met. 67; Wilson v. Baltimore, 83 Md. 203. (5) When the word "penalty" is used in a bond or contract, it is generally conclusive against the amount therein stated being held liquidated damages. But the courts give little weight to the use of the words "liquidated damages," unless there are other statements in the contract which make it certain that the parties had considered, computed and agreed upon the damages. Hammer v. Briedenbach, 31 Mo. 52; Basye v. Ambrose, 28 Mo. 39; Taylor v. Sandiford, 7 Wheat. 13; Bagley v. Peddie, 16 N.Y. 469; March v. Allabaugh, 103 Pa. St. 342; Smith v. Dickeson, 3 B. & P. 330; Wilkinson v. Colley, 164 Pa. St. 41; Smith v. Brown, 164 Mass. 384; Condon v. Kemper, 47 Kan. 130; Van Buren v. Diggs, 11 How. 477; Perkins v. Lyman, 11 Mass. 76; Stearnes v. Barrett, 1 Pick. 451; Smith v. Wainwright, 24 Vt. 102; Colwell v. Lawrence, 38 N.Y. 74; Huntington v. Attrill, 146 U.S. 657; Moore v. Colt, 127 Pa. St. 297; Watts v. Camors, 115 U.S. 360; Smith v. Wedgewood, 74 Me. 460. (6) Where there is a variety of provisions in a contract, and a certain sum is stipulated to be paid upon the violation of any and all of such provisions, or where a slight deviation from the contract is visited with the same amount of damage as a breach of the whole or the most important terms of the contract, such sum is regarded as a penalty. Gower v. Saltmarsh, 11 Mo. 271; Lyman v. Babcock, 40 Wis. 503; Hathaway v. Lynn, 75 Wis. 186; Wilkinson v. Colley, 164 Pa. St. 41; Bigony v. Tyson, 75 Pa. St. 157; Ashley v. Weldon, 2 B. & P. 353; Watts v. Camors, 115 U.S. 360; Pennybeche v. Jones, 106 Pa. St. 337; Horner v. Flintopl, 6 M. & W. 678; 3 Parsons on Contracts (8 Ed.), * 161; Burrill v. Dagget, 77 Me. 545; Coswell v. Johnson, 58 Me. 164; Perkins v. Lyman, 11 Mass. 76; Moore v. Colt, 127 Pa. St. 297; May v. Crawford, 142 Mo. 390. (7) The two last provisions of the contract being conceded to be penalties, the one sued upon will also have to be so interpreted. March v. Allabough, 130 Pa. St. 342; Lansing v. Dodd, 45 N. J. L. 526; Holdeman v. Jennings, 14 Ark. 333. (8) The amount of $ 5,000 "was unreasonable and out of proportion to the probable damage," and is, therefore, a penalty. Cochran v. Railroad, 113 Mo. 363; Hamaker v. Schroers, 49 Mo. 408; Morse v. Rathburn, 42 Mo. 594; March v. Allabough, 103 Pa. St. 335; Wilkinson v. Colley, 164 Pa. St. 41.

MARSHALL, J. Valliant, J., having tried the cause while circuit judge, took no part.

OPINION

MARSHALL, J.

Damages for breach of contract.

I.

This case is here for the second time, upon appeal by the plaintiffs. The prior decision is reported in 142 Mo. 390, 44 S.W. 260. The evidence of the plaintiffs then and now is substantially the same. Then the defendants offered no testimony, insisting that as plaintiffs had proved no special damage the judgment of the circuit court, which awarded plaintiffs only nominal damages, should be affirmed, because the contract between the parties provided only for a penalty for its breach, while plaintiffs contended that the damages were liquidated by the contract and therefore the trial court should have entered judgment for five thousand dollars, the amount specified in the contract, in respect to the acts complained of, and hence the judgment for only nominal damages was erroneous. The trial court had found that the defendants had broken their contract, and this court then held that this finding was proper. The judgment below was then reversed and the cause remanded for a new trial. Upon a trial anew before a jury in the lower court the plaintiffs introduced the same evidence as before, and rested without proving any special damages, claiming that under the decision of this court, on former appeal, the contract provided for liquidated damages, and not for a penalty. The defendants denied this meaning of the prior decision, but introduced some testimony, principally to show that they had not advertised for sale goods as having been purchased from plaintiffs which had not in fact been so purchased, and to show that at the same time that defendants were publishing the advertisements complained of by plaintiffs, as constituting a breach of contract, the plaintiffs were advertising that they had sold only certain portions of their goods to defendants and that as to the remaining portions they were still doing business. There was a verdict for the defendants, from which plaintiffs have appealed.

Counsel for the respective parties are utterly disagreed as to the meaning and effect of the decision of this court on prior appeal, and the trial court, seemingly, was unable to understand it.

Under the...