Ward v. Haren
| Decision Date | 02 June 1914 |
| Parties | EDWARD WARD, Respondent, v. WILLIAM A. HAREN, Appellant |
| Court | Missouri Court of Appeals |
Appeal from St. Louis City Circuit Court.--Hon. William M. Kinsey Judge.
AFFIRMED.
Judgment affirmed.
Edw. C Kehr for appellant.
(1) Under the opinion and mandate of the Court of Appeals the power and duty of the circuit court upon the retrial of the cause, was limited to finding the number of days after April 15, 1904, that the contractor was in default in the completion and delivery of the building and to give the defendant judgment against the plaintiff on the counterclaim for the number so found at the rate fixed by the contract as liquidated damages. (a) Where a cause is remanded with special directions, the court receiving such directions, is bound to obey them and comply with the mandate. Neither the law or the fact adjudged by the appellate court can be retried below. Pomeroy v. Benton, 77 Mo. 79; Reis v. McDaniel, 131 Mo. 681; Citizens Nat Bank v. Donnell, 195 Mo. 564; Viertel v. Viertel, 212 Mo. 562; State ex rel. v. Anthony, 65 Mo.App. 543; Chiles v. School Dist., 111 Mo.App. 52. (b) The decision of this court on the first appeal is the law of the case. Roth Tool Co. v. Spring Co., 146 Mo.App. 1; Ashby v. Gravel Road Co., 111 Mo.App. 80; Lawson v. Spencer, 90 Mo.App. 514; McGrew v. Railroad, 118 Mo.App. 379; May v. Crawford, 150 Mo. 504; Gracey v. St. Louis, 221 Mo. 1; Meriwether v. Publishers, 224 Mo. 617. (2) It was respondent's duty to bring forward on the first trial all defenses which he had to the counterclaim and whether he did or not, all are barred by the decision of the first appeal. Donnell v. Wright, 147 Mo. 639; Summet v. Realty & B. Co., 208 Mo. 501; Spratt v. Early, 199 Mo. 491; Cantwell v. Johnson, 236 Mo. 603; Hines v. Hines, 243 Mo. 495. (3) The court below erred: In failing to strike out plaintiff's amended reply; in failing to observe and carry out the mandate of the appellate court and in proceeding to consider and determine adversely to it matters adjudicated by its opinion and decision; in refusing the instructions asked by appellant and in giving instructions on its own motion which are wholly erroneous. (4) The judgment rendered by the court below is wholly inconsistent with the facts found by it. The court found that the contractor was in default in the completion and delivery of the building for more than twelve days and that the damages are liqudated at $ 120 per day, and yet refused appellant the judgment to which these facts entitled him and gave him instead a judgment for $ 1.46 actual damages on his counterclaim. (5) Instead of following the mandate and entering the judgment which the fact found required, the trial court assumed the right to try the whole case anew and on its own motion to put it upon conclusions of fact and law not warranted either by the pleadings or the mandate and in direct conflict with the opinion and judgment of this court. (6) Liquidated damages when found exclude the consideration and proof of actual damages. Beale v. Hayes, 5 Sandford R. 640-3-4; Sedgwick on Damages (9 Ed.), sec. 426; Sutherland on Damages (3 Ed.), secs. 279 and 283. (7) Failure to make claim under Art. 7, of the contract for an extension of time, forfeits any right on the part of the contractor to an extension. The presentation of such claim is a condition precedent to the right of the contractor to claim such extension. Feeney v. Bardsley, 66 N.J.L. 239; Curry v. Olmstead, 26 R. I. 462; Wagner Co. v. Cawker, 112 Wis. 532; O'Keefe v. St. Francis Church, 59 Conn. 561. (8) The parties having agreed to substitute a tile roof for the corrugated iron roof, the contract thus modified was thereafter the contract between them and the suit must be based and this suit is based on the contract as modified. Lanitz v. King, 93 Mo. 519; Sutter v. Raeder, 149 Mo. 309; Harrington v. Brockman Com. Co., 107 Mo.App. 423.
Rodgers & Koerner for respondent.
(1) The circuit court was right in permitting plaintiff to amend his reply and in trying the case upon the new issues presented. The mandate of this court did not preclude plaintiff from interposing additional defenses to the counterclaim. The directions of said mandate, if properly construed, do not preclude such defenses. Had defendant's motion to strike out the defenses to the counterclaim been sustained, plaintiff would have had the right to amend his reply. This right he has never lost. Directions of an appellate court based upon a misapprehension should not be strictly followed so as to work a manifest injustice. Railroad Co. v. Soutter, 69 U.S. (2 Wallace) 510; Building & Loan Assn. v. Anderson et al., 99 F. 489. (2) Only those questions which were directly presented to this court on the former appeal and considered and decided by this court have been adjudicated. Gwin v. Waggoner, 116 Mo. 143; Ables v. Ackley, 133 Mo.App. 594; Baker v. Railroad, 147 Mo. 140; Railroad v. Swan, 120 Mo. 31. (3) This court may examine its previous decision in the same case and on the same issue and reverse it if it is wrong. Gracey v. St. Louis, 221 Mo. 1; Williams v. Butterfield, 214 Mo. 412. (4) Defendant suffered no actual damage--hence, he can recover nothing more than nominal damages. Werner v. Finley, 144 Mo.App. 554; Hathaway v. Lynn, 75 Wis. 186; McCann v. City of Albany, 158 N.Y. 634; Wilgus v. Kling, 87 Ill. 107; McKee v. Rapp, 35 N.Y.S. 175; 1 Sedgwick on Damages (9 Ed.), 759, sec. 391. (5) Defendant, by taking possession of the west store of the building on April 18, 1904, waived any claim to liquidated damages he might otherwise have had. 1 Sutherland on Damages (3 Ed.), p. 790, sec. 296; Wyraux v. Grinnell Live Stock Co., 9 Mont. 154; Collier v. Batterton, 87 Tex. 440; Kemble v. Farren, 6 Bingham, 141. (6) No liquidated damages can be recovered after acceptance of part performance. Therefore, in the present case there can be no recovery for the period after April 18, 1904, upon which date defendant took possession of the west store of the building. 1 Sutherland on Damages (3 Ed.), 790, secs. 296, 297; Collier v. Batterton, 87 Tex. 440; Quotation from Pothier in brief in Kemble v. Farren, 6 Bing. 141. (7) Clause 6 of the contract is a stipulation for a penalty and not an agreement for liquidated damages. The word "forfeit" in this clause, although not conclusive, is indicative of the intention of the parties. 1 Sedgwick on Damages (9 Ed.), 786. The stipulated sum is unreasonable and unconscionable and out of all proportion to the injury. 1 Sedgwick on Damages (9 Ed.), secs. 411, 412, 419, 420b; Cochran v. Railroad, 113 Mo. 359; Zimmerman v. Conrad, et al., 74 S.W. 139; McCann v. City of Albany, 158 N.Y. 634. (8) The change in the plans and specifications eliminated the time agreement in Article VI of the contract. Van Buren v. Diggs, 11 How. (U.S.), 461; Palmer v. Stockwell, 9 Gray, 237; Westwood v. Sec'y of State, etc., 11 Weekly Reporter, 261; Dodd v. Churton, 45 Weekly Reporter, 490.
This is the second appearance of this case in this court. The opinion on the former appeal will be found reported in 139 Mo.App. 8, 119 S.W. 446. The action is one for a balance due upon a building contract by which the plaintiff agreed to erect for the defendant a certain temporary building, in the city of St. Louis, in consideration of the sum of $ 8120, to be paid him by defendant. The contract was entered into on February 23, 1904, and the building was intended to be rented for business purposes during the period of the Louisiana Purchase Exposition, or "World's Fair," held in said city; the lot upon which it was to be located being near the main entrance to said exposition grounds.
The opening of the exposition was on April 30, 1904, and the contract contained a stipulation that if the building was not completed by plaintiff on the 15th day of April, 1904, and the possession thereof delivered to the defendant on said day, then for each and every day thereafter during which the completion thereof should be delayed, the plaintiff should "forfeit and pay" to the defendant the sum of $ 120 for each and every day that plaintiff remained in default.
During the progress of the work certain changes were made in the plans and specifications, necessitating a longer time for the completion of the work, as well as additional expense on plaintiff's part. The additional compensation to be paid plaintiff was agreed upon; and there is no question here respecting the amount asserted by him to be the balance due upon the contract. The only controversy in the case is in respect to the defendant's claim to liquidated damages for the period during which the completion of the work was delayed.
The petition avers that the total compensation which plaintiff was entitled to receive was $ 8821.35; that he had received on account thereof from defendant $ 6935.76, leaving a balance due of $ 1885.59, for which he prayed judgment.
The "answer and counterclaim" set up the provisions of the contract relative to a default in the completion of the building by the time specified, and averred that the plaintiff was in default for a period of twelve days in completing the same, and prayed for liquidated damages, under the contract, at the rate of $ 120 per day, the total of the counterclaim being $ 1440.
The plaintiff, in his reply, admitted that the building was not completed and delivered to the defendant at the time agreed upon, but averred that said provision in the contract had been waived by reason of the above mentioned changes in or deviations from the original plans and specifications referring as well to other matter alleged in the petition as excuse for full compliance...
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