Simpson v. Ball

• Decision Date: 28 June 1910
• Citation: 145 Mo. App. 268,129 S.W. 1017
• Parties: SIMPSON v. BALL et al.
• Court: Missouri Court of Appeals

129 S.W. 1017

145 Mo. App. 268

SIMPSON v. BALL et al.

Kansas City Court of Appeals. Missouri.

June 28, 1910.

1. APPEAL AND ERROR (§ 989) — REVIEW — CONFLICTING EVIDENCE.

Conflicting evidence will not be weighed on appeal.

2. TRIAL (§ 256)—INSTRUCTIONS—REQUESTS.

In an action for breach of contract to employ plaintiff to prepare plans and specifications for a building, the court instructed that if defendant prevented plaintiff from completing the contract, and he was thereby damaged, the finding should be for plaintiff for such loss as he had sustained, not exceeding the contract price. Held, that defendant could not complain of the instruction, on the ground that it was too general, where he did not ask for a more specific instruction.

3. DAMAGES (§ 163)—BREACH OF CONTRACT— BURDEN OF PROOF.

In an action for breach of contract, plaintiff having been discharged while in the performance of his contract and without fault on his part, he was prima facie entitled to recover the contract price, and the burden was on defendant to prove mitigating facts.

Appeal from Circuit Court, Jackson County; John D. Williamson, Special Judge.

Action by Leslie B. Simpson against J. E. Ball and others. From a judgment in favor of plaintiff, defendants appeal. Affirmed.

Chapman & Hanger, for appellants. A. F. Smith, W. F. Guthrie and Boyle & Howell, for respondent.

JOHNSON, J.

Action to recover damages for breach of contract. The appeal is prosecuted by defendants from a judgment rendered for plaintiff on a verdict of $375.

The contract was oral, and at the time it was made plaintiff was an architect, employed by a firm of architects in Kansas City. Defendants decided to erect a large building on property owned by them in the business district of Kansas City, and after looking at rough plans submitted by plaintiff agreed to employ him to prepare the plans and specifications. Plaintiff had the consent of his employers to take the employment on his own account as a side job. The consideration he was to receive was below the price usually charged by architects for such work. Defendants do not deny the employment, but claim that plaintiff agreed to open an office of his own, where they might transact business with him without embarrassment, and that they did not discharge him until after he had broken this agreement. Plaintiff denies making such agreement, and contends that defendants knew he would remain with his employers, and used that fact to beat him down in his price, arguing that, "as you are doing it on the side, it will be like finding money." Defendants discharged plaintiff, after he had partly performed the contract, and employed other architects.

The principal instruction given at the request of plaintiff was as follows: "If you believe from the evidence that the plaintiff and the defendants entered into an agreement by which plaintiff was to prepare plans and specifications for a building for them at Ninth and Oak streets, in Kansas City, Mo., and defendants were to pay him for such services the sum of $375, and that plaintiff undertook to perform such agreement, but was prevented from completing it by the defendants without fault on his part, and that the plaintiff was thereby damaged, then your finding should be for the plaintiff for such loss (if any) as you believe from the evidence he has sustained by reason of such acts of the defendants, not exceeding the sum of $375."

The first contention of defendants in substance is that the evidence adduced by them so greatly preponderates over that of plaintiff that its version of the transaction should be accepted as conclusively established. We disagree with this view of the evidence. We regard the evidence of plaintiff as substantial enough to tender the issue with respect to every fact constitutive of the cause of action asserted, and, since it is not...