Schenk v. Forrester

• Decision Date: 03 November 1903
• Citation: 77 S.W. 332,102 Mo.App. 124
• Parties: SCHENK, Respondent, v. FORRESTER, Appellant
• Court: Missouri Court of Appeals

77 S.W. 332

102 Mo.App. 124

SCHENK, Respondent, v. FORRESTER, Appellant

Court of Appeals of Missouri, St. Louis

November 3, 1903

Appeal from Scotland Circuit Court.--Hon. E. R. McKee, Judge.

AFFIRMED.

Judgment affirmed.

Higbee & Mills and J. M. Jayne for appellant.

(1) There was no evidence of any warranty that the fence would prevent the escape of plaintiff's cattle. Wisdom v Newberry, 30 Mo.App. 241; Fisher v. Goebel, 40 Mo. 476; Tuttle v. Gilbert Mfg. Co., 145 Mass. 169 13 N.E. 465; 2 McAdam on Landlord and Tenant, (3 Ed.), secs 385 and 386, page 1244; Ward v. Fagin, 101 Mo. 669. (2) Damage sought to be recovered was not the direct or proximate or unavoidable result of defendant's failure to keep the fences in repair. Fontana v. Schulenburg & Boeckler Lumber Co., 109 Mo. 55; Ploen v. Staff, 9 Mo.App. 309; Turner v. Gibbs, 50 Mo. 557; Clemons v. Railroad, 53 Mo. 366; McAllister v. Railroad, 74 Mo. 361.

N. M. Pettingill, Smoot, Boyd & Smoot for respondent.

(1) The cost of repairs is not the measure of damages, where plaintiff has a contract with defendant to repair, and plaintiff relies on that contract. Eagle v. Swaze, 2 Daly 140; Center v. Davis, 39 Ga. 210; Priest v. Nichols, 116 Mass. 401; Hinckly v. Beckwith, 13 Wis. 31; s. c., 17 Wis. 413; Little v. McAdaras, 38 Mo.App. 187; City of Lowell v. Spaulding, 50 Am. Dec. 775; Walker v. Swayzee, 3 Abb. Pr. R. 136. (2) Up to the time plaintiff had notice or knowledge of the condition of the fence in question, he had a right to recover the damages incurred and sued for. Brewster v. DeFremery, 33 Cal. 341; Sherwood v. Seaman, 2 Bosw. 127. The damages were not too remote or consequential. Miller v. Railroad, 90 Mo. 394; Adams v. Railroad, 100 Mo. 567; Glickauf v. Maurer, 75 Ill. 289, 20 Am. Rep. 238, 50 Am. Dec. 782; Campbell v. Portland Sugar Co., 62 Me. 552, 16 Am. Rep. 510; Wood's Land. and Ten., sec. 378; Riley v. Pettis Co., 96 Mo. 318. (3) Where the defendant covenanted to repair and keep in repair, and knew at the time the purposes for which the premises leased were to be used, it was his duty to keep them in such state of repairs as the business for which they are to be used requires. Myers v. Burns, 35 N.Y. 269; 3 Sutherland on Damages, p. 167.

REYBURN, J. Bland, P. J., and Goode, J., concur.

OPINION

REYBURN, J.

This is an action instituted by plaintiff, the tenant, against defendant, his landlord, for damages claimed to have been sustained by the breach of a parol contract for the renting of pasture lands.

The final amended petition contained three counts, but at the trial the court sustained appellant's demurrer as to the first and third counts of the petition, and instructed the jury to find a verdict for the defendant upon those counts, and the trial proceeded before a jury on the second count, the substantial allegations of which are as follows: That on the twelfth day of July, 1900, defendant contracted with plaintiff to lease the latter the pasturage on lands described, for the remainder of the season, knowing the plaintiff desired to use the pasturage for his cattle, and for such use the plaintiff paid $ 150; that as part of the consideration defendant agreed to repair the fence around the rented premises, put them in such condition as to be secure for stock, and maintain them in such condition while plaintiff used the premises, and on the faith of such promise the plaintiff accepted the use of the premises, paid the rental and turned one hundred head of cattle therein, but that the defendant had failed to repair the fence between such lands and the land of one Garrison, adjoining; that defendant's part was rotted and decayed and not sufficiently repaired by him to turn stock, nor did he keep it in repair, and by reason of such defects and failure to repair as agreed, the stock of plaintiff broke into Garrison's fields and damaged his growing crops in the sum of $ 65, for which sum, plaintiff being compelled to pay Garrison, plaintiff asked judgment.

The answer of defendant consisted of a general denial of each count of the petition.

1. The testimony tended to establish that early in the month of July, 1900, plaintiff and defendant entered into negotiations for the tenancy of the pasture, and together they visited and inspected the pasture, fencing and water gap, and the verbal agreement for the tenancy of the pasture lands for the season of 1900 ensued, the fencing and water gap were repaired by the defendant, the rental paid and possession taken by plaintiff by turning in about one hundred head of cattle; that about the beginning of September a deadened tree, which had been in use as a post, had fallen across the fence between the rented lands and those of L. F. Garrison, the neighbor adjoining, and that plaintiff's cattle escaped into the cornfield of Garrison and injured the crop, for which the plaintiff had paid Garrison $ 38.50. The defendant objected to the testimony offered on behalf of the plaintiff, relative to the damage to Garrison's crop by the cattle, as not being the proper measure of damages, but the objection was overruled and testimony admitted by the court.

The proper measure of damages recoverable by plaintiff was such injury as naturally flowed from the breach of the contract and was restricted to such loss as was the direct, immediate proximate and unavoidable consequence of the impaired condition of the fencing. The case of Wisdom v. Newberry, 30 Mo.App. 241, presented a state of facts analogous to the condition disclosed herein and it is held therein that the injury caused by escaping...