Mitchell v. Branham

• Decision Date: 22 May 1906
• Citation: 95 S.W. 939,119 Mo. App. 643
• Parties: MITCHELL v. BRANHAM.
• Court: Missouri Court of Appeals

95 S.W. 939

119 Mo. App. 643

MITCHELL v. BRANHAM.

St. Louis Court of Appeals. Missouri.

May 22, 1906.

Rehearing Denied July 9, 1906.

1. CONTRACTS — ACTION ON—PLEADNG—ILLEGALITY.

Illegality of a contract sued on must be pleaded.

2. DAMAGES — EXCESSIVE DAMAGES — BREACH OF CONTRACT.

In an action by the purchaser of a saloon and good will of the business against the seller for breach of the contract, consisting of defendant's having engaged in the saloon business for four months as a rival. held, that a verdict for plaintiff for $1,000 showed that the jury must have been misled as to the proper basis upon which to estimate the damages, and the verdict was excessive by $350.

Appeal from Circuit Court, Madison County; Chas. A. Killian, Judge.

Action by D. A. Mitchell against Adolph Branham. From a judgment in favor of plaintiff, defendant appeals. Reversed, unless plaintiff remit a specified amount from his judgment; otherwise, affirmed.

Robt. Rutledge and W. S. Anthony, for appellant. J. V. Conran, L. Collins, and A. R. Anthony, for respondent.

BLAND, P. J.

The petition alleges, in substance, that in September, 1901, defendant owned a house and lot, in the town of Portageville, New Madrid county, Mo., and also a saloon with bar fixtures and a stock of liquors; that in consideration of the sum of $2,305.75, to him paid by plaintiff on September 17, 1901, defendant conveyed all of said property to the plaintiff, and also agreed to give plaintiff his good will, and, as a further consideration for the said sum of $2,305.75, agreed to enter into a written contract that he would not engage in the saloon business in said town of Portageville for a period of three years from September 17, 1901; that defendant, wholly disregarding his said promise and agreement, failed and refused to give the plaintiff his good will, and refused to enter into a written agreement not to engage in the saloon business in Portageville for a period of three years, but in violation of his contract withdrew his good will from plaintiff, and opened and conducted a saloon for a period of six months across the street from and opposite the saloon which he had sold to plaintiff, to the plaintiff's damage in the sum of $5,000. The answer was a general denial. The case was here on a former appeal, when it was reversed and remanded. 104 Mo. App. 480, 79 S. W. 739. After the cause was remanded for retrial, the venue was changed to Madison county, where on a second trial a verdict was returned for plaintiff for $1,000. Plaintiff's evidence tends to show that the real and personal property purchased by him from the defendant was worth from $800 to $1,000 less than the purchase price of $2,305.75, and that the good will of the defendant and his agreement not to engage in the saloon business in the town of Portageville was a part of the consideration for the purchase. The evidence tends to show that after the purchase, plaintiff conducted the saloon and retained the trade defendant had prior to the sale for about 10 days or two weeks, and until the defendant open a rival saloon across the street from plaintiff and induced his former customers and friends to patronize his saloon. Defendant continued in the saloon business for six months, causing, according to the evidence, a falling off in plaintiff's trade and a loss of profits....