Stevens v. Crane

• Citation: 22 S.W. 783,116 Mo. 408
• Parties: Stevens, Appellant, v. Crane
• Decision Date: 05 June 1893
• Court: Missouri Supreme Court

22 S.W. 783

116 Mo. 408

Stevens, Appellant, v. Crane

Supreme Court of Missouri, First Division

June 5, 1893

Appeal from St. Louis City Circuit Court. -- Hon. Daniel Dillon Judge.

Reversed and remanded.

W. B Thompson for appellant.

(1) The petition states a good cause of action on a breach of written contract set forth in the petition which was performed according to its terms by the plaintiff and the condition of its approval by the circuit court, as provided, was waived at the time of its execution, and it was performed with such waiver from its date to the date of the breach without any objection on the part of the defendant. Dobbins v Edwards, 18 Mo.App. 307; Rice v. Railroad. 63 Mo. p. 321; Melton v. Smith, 65 Mo. 315; Pond v. Wyman, 15 Mo. 116; Steinberg v. Gebhardt, 41 Mo. 519; Nearns v. Horbert, 25 Mo. 352; Stump v. Mueller, 17 Mo.App. 290; Little v. Mercer, 9 Mo.App. 218; Benjamin on Sales [4 Ed.], 566; Baker v. Railroad, 19 Mo.App. 321. (2) The performance of a particular thing is always waived by the acceptance of a substitute for such particular thing and the payment of money to the plaintiff for services rendered up to the date of his discharge, which was conceded at the trial, answers every argument made by defendant in error. First. The waiver of approval by the circuit court of the contract was testified to by that plaintiff. Second. The defendant admitted that he had paid money to the plaintiff under the contract. Third. The uncontradicted facts in the case disclosed that the contract was performed with a waiver for three years, until March, 1883, when plaintiff was discharged, and such acts of both parties constituted a full and complete confirmation and ratification of the contract. Bigelow on Fraud, p. 184; Dinsmore v. Livingston Co., 60 Mo. 241; Estel v. Railroad, 56 Mo. 282; Dobbing v. Edmonds, 18 Mo.App. 307. (3) A contract for personal services is broken by a discharge of the party employed, and he can recover on the contract whatever damages he has sustained from the date of the discharge to the date of bringing suit, less what he has earned or could earn during this period. Pond v. Wyman, 15 Mo. 175 and 183; 19 Cent L. J. 342; Wood on Master and Servant, pp. 238, 237 and notes; Koenigkramer v. Glass Co., 24 Mo.App. 124; Stevens v. Crane, 37 Mo.App. 487. The verdict of the jury is clearly erroneous because there was no evidence to sustain any deduction by reason of the plaintiff being engaged in any employment, or that he could have earned any money in a similar employment. This is necessary under all the decisions. Stevens v. Crane, 37 Mo.App. 487; Koenigkramer v. Glass Co., 24 Mo.App. 124; Miller v. Boot and Shoe Co., 26 Mo.App. 57. (4) The court erred in admitting the record and suit of Dillon's trustee against Crane.

E. W. Pattison for respondent.

(1) Appellant himself fixed the theory upon which damages were to be assessed in this case and cannot complain that the jury followed it. (2) The court did not err in admitting in evidence the record of the case brought by the present trustees of Dillon against the appellant.

OPINION

Brace, J.

-- In June, 1880, the defendant, Newton Crane, was appointed by the circuit court of the city of St. Louis trustee under the will of Patrick M. Dillon, deceased, duly qualified as such, and thereupon entered into the following contract with the plaintiff:

"St. Louis, Mo., June, 1880.

"It is hereby agreed between Newton Crane, Esq., and Charles D. Stevens, that the latter is hereby appointed agent of the former by and with permission of the circuit court of the city of St. Louis, and at all times subject to the approval, orders and decrees of said court to attend to such duties and perform such services pertaining to the care and management of the estate of Patrick M. Dillon, deceased, as shall be directed by said Crane as trustee of said estate during the time said Crane shall continue to be such trustee, and as long as said Stevens shall well and faithfully perform such duties as may be required of him by said trustee. In payment of which services rendered, said Stevens is to receive one-half the compensation of said trustee.

(Signed) "Newton Crane,

"Charles D. Stevens."

Under this contract plaintiff performed service until March, 1883, when he was discharged by the defendant; and thereafter, on the twenty-first day of January, 1885, he instituted this suit, claiming that such discharge was wrongful and without cause and that he was damaged thereby to the amount of $ 3,000.

In the court below the plaintiff had a verdict and judgment for $ 66, from which judgment he appeals and asks for a reversal of the judgment on account of the inadequacy of the damages, superinduced as he claims by errors of the court, in admitting illegal evidence, and in giving an erroneous instruction on the measure of damages.

I. The instruction complained of is as follows: "The court instructs the jury that if they find from the evidence that plaintiff performed the services as agent of defendant as trustee of the estate of P. M. Dillon, deceased, as required by defendant up to the time he was discharged by the defendant, and they further find that he was discharged without good or sufficient cause, as defined in other instructions, by defendant, from the employment, then the jury will find for the plaintiff and assess his damages at one-half of any and all commissions received by defendant from the date of said discharge until the filing of this suit, January 21, 1885, with six per cent. interest thereon to this date from said Januaary 21, 1885; unless the jury further find from the evidence, that during the period between the time plaintiff was discharged and the bringing of this action he earned any money, or you believe from the evidence he might by reasonable effort have been able to earn any money since that time, and if the jury believe from the evidence that plaintiff did earn money or by reasonable diligence would have earned money during said period of time then the...