Moore v. Platte Cnty.

• Decision Date: 31 January 1844
• Citation: 8 Mo. 467
• Parties: MOORE & HUNT v. PLATTE COUNTY.
• Court: Missouri Supreme Court

8 Mo. 467

MOORE & HUNT

v.PLATTE COUNTY.

Supreme Court of Missouri.

January Term, 1844.

APPEAL FROM PLATTE CIRCUIT COURT.

HAYDEN, for Appellants. 1. The declaration is radically defective, and shows no cause of action against the defendants. The bond sued on is not stated in the declaration to have been made to the plaintiff, or to any one acting as her agent authorized to receive it for her, and therefore it does not appear that the supposed breaches of the condition of the bond could, or did, deprive her of anything to which she had title or right. Perkins v. Reed, Administrator of Nash, &c., 8 Mo. R. 33; 6 Mo. R. 277, Muldrow v. Tappan, and authorities cited. 2. The demurrer of the plaintiff to the plea of the defendants was improperly sustained by the court; and as the declaration is defective, the judgment thereon ought to have been rendered for defendants: and aside from the defect in the declaration, the said several special pleas respectively show a good bar to the plaintiff's right of recovery. 3. The court erred in permitting plaintiff to enter a discontinuance of his action as to defendant, John P. Hunt, after plea plead by him. 1 Chitty, 599, title Pleas in bar by several Defendants. 4. The court erred in permitting the plaintiff to give to the jury irrelevant and incompetent testimony, and testimony variant from the contract declared on; and erred in refusing to permit the defendants to give the evidence proposed by them upon the trial. 5. The court gave to the jury upon the motion of plaintiff, instructions against law, and erred in refusing to give to the jury the instructions asked by defendants.

The first instruction given to the jury, at the instance of plaintiff, was erroneous--because, although the jury might have found the deed read in evidence to be the deed of the defendants, yet it did not thence follow that they were bound to find for the plaintiff The deed read in evidence by the plaintiff is variant from the one described in the declaration, and the jury had a right to determine how far the deed read in evidence, though found to be the deed of the parties, corresponded with the one set out in the declaration. The second instruction given for the plaintiff to the jury is erroneous in this: it requires the jury to find a verdict for the sum of fifteen hundred and seventy dollars in damages, as being stipulated damages; whereas, upon a fair and legal construction of the contract, the same can only be considered in the nature of a penalty, designed and intended by the parties to secure the performance of certain work to be done by defendants Whether a sum of money be intended as a penalty, when mentioned in agreements, to secure the performance of contracts, or other particular duties, or whether intended by the parties as stipulated damages, to be paid in lieu and in satisfaction of a thing agreed to be done or performed, must always depend upon the nature and object of the contract--taking into consideration the comparative value of the collateral thing or duty to be performed, with the amount of the sum named as a penalty, or as damages, stipulated to be paid in lieu of the thing or duty contracted. If the collateral thing or duty covenanted to be performed, or done, be so much less valuable that the sum named as the penalty or stipulated damages, as would present a case of such excess over what would be legally right for the obligee to recover, in a suit for damages against the obligor, for a breach of his covenant for the performance of the thing or duty--whether the same be named as a penalty or as stipulated damages in the contract--as would induce a court to set aside a verdict, if found in damages for such breach of covenant, the law will, and ought, to consider the same as a penalty, and not as stipulated damages. In this case the value of the collateral duty to be performed, according to the stipulated price to be paid as an equivalent, is the sum of $788. The work is admitted by plaintiff to have been performed by William Moore; and yet, because not quite so well done as by covenant required, the plaintiff demands, and recovered judgment for double the value of the work as priced by the parties in the contract, and is in possession and full enjoyment of the work as done by defendant, Moore. 5 Cowen, 150 note b; 3 Johns. Cases, 297, Dennis v. Cummins; 7 Johns. R. 72; Chitty on Contracts, 5th Am. ed. from the 3rd Lon. ed. corrected by Thompson, pp. 863-6, and authorities referred to; 3 Peters' Dig., 206, 207; 5 Cond. U. S. R. 210; Taylor v. Standiford, 7 Wheaton, 13, same case, Digest of 1835, §§ 5-8, p. 431. And the criterion of damages laid down in said second instruction, given at the instance of the plaintiff, is erroneous for another insuperable reason, to wit: the bond is a statutory bond, and is not warranted by the statute under which it was made: it was made by defendants to the county of Platte, under the provisions of the statute of this State, title County Buildings, p. 148 of Digest, 1835, by which said County Court was authorized to contract for the covering of the court-house, and to require of the undertaker, Moore, bond, with security, in a penalty in double the amount of the price agreed to be paid for the doing of the work; but she had no right, power, or authority to demand or require by the contract, by way of stipulated damages, a large sum of money in lieu of the roof. She had no authority under the statute to fill her coffers, by way of speculation, out of the pockets of the undertaker of her public buildings: she was, and is, limited by the statute to the right only of securing the thing contracted for by the penalty presented in the act; and in case of a non-compliance with the contract, to such damages for the breach of it as the actual damages sustained, and nothing more; and for anything further, the bond is void. 1 Peters' Dig. U. S. Decisions, § 37, p. 374; Armstrong v. The United States, Peters' C. C. R. 135; 1 Peters' Dig., § 49, p. 375; 4 Wash. C. C. R. 620, United States v. Samuel and J. L. Howell.

LEONARD and BAY, for Appellee.

1. The breaches are properly assigned: the defendant, Moore, contracted to perform the work in the best manner, and with good materials, &c. and the breach assigned is, that the work was not done in the “best manner,” &c., but in an unworkmanlike manner, &c., and stating how the plaintiff was injured thereby. Besides, any defect or inaccuracy in assigning the breach is aided after verdict; for the court will intend, that damages could not have been given if a good breach had not been shown, Thomas v. Roosa, 7 Johns. R. 461; White v. Derrilt, 2 Hall. 405; Helm v. Wilson, 4 Mo. R. 493.

2. The second, third, fourth and fifth pleas are bad, because. 1st. The second and third pleas are no answer to the breaches assigned. The question is not whether the defendant, Moore, performed the work, but whether he performed the same in the manner required by the terms of his contract. 1 Chitty's Pl. 553, 554. 2nd. The third plea tenders an immaterial issue. 3rd. The fourth plea refers to the jury a matter of law. 1 Chitty's Pl. 245; Bennett v. Martin, 6 Mo. R. 460.

3. The evidence of Jesse Morin was properly admitted, because, 1st. He had no interest in the event of the suit. 2nd. His evidence was not admitted for the purpose of varying or changing the terms of a written agreement, but for the purpose of showing that a pretended written agreement was not, in fact, the agreement of the parties; that no such agreement was made. Chitty on Contracts, 90, 91; 3 Starkie's Ev. 1015.

4. The instructions asked by the defendants were wholly irrelevant to the issue. Where issue is joined on the plea of non est factum, the only proof required on the part of the plaintiff is proof of the execution of the bond by the defendant. Hutchinson v. Kearns, 1 Selwyn's N. P. 589. But in the case at bar, even this proof was not required; the plea was filed without affidavit, which dispenses with proof of the execution of the bond. Rev. Stat. 1835, p. 463, title Practice at Law, 18th section of 4th article.

5. Where parties agree that a certain sum shall be paid, “not as a penalty, but as liquidated damages,” for the non-performance of a particular act, in regard to which damages, in their nature uncertain, may arise, such sum may, in case of default, be recovered as liquidated damages. 4 Burr. 222, 225; 3 Taunt 469. See Kemble v. Farren, 6 Bing. 141, in which it is admitted, that there is “nothing illegal or unreasonable in the parties, by their mutual agreement, settling the amount of damages, uncertain in their nature, at any sum upon which they may agree.” Fletcher v. Dyche, 2 Term R. 32; Barton v. Glover, 1 Holt, 43; Glasson v. Beadle, 7 Johns. R. 72; Hosbrouch v. Tappan, 15 Johns. R. 200; Dakin v. Williams, 17 Wend. 447. In Irwin's Administrator v. Tanner, 1 Mo. R. 210, it was held, that where the parties had fixed their own measure of damages, the court would not interfere with their intention. In Reilly v. Jones, 1 Bing. 302 (8 Eng. C. L. R. 328), Burrough, J., remarked, “there is no case which has decided that the defendant shall not pay the whole sum, when the expression, liquidated damages, has been employed to designate the nature of the payment.”

TOMPKINS, J.

On the 29th day of September, Platte county instituted an action of debt against William Moore, David Hunt and John P. Hunt. in the Circuit Court of that county, and obtained a judgment, to reverse which, this appeal is prosecuted.

The first count in the declaration is in these words: “Platte county complains...