Watkins v. Hovey, 6070.

• Court: United States District Courts. 8th Circuit. Western District of Missouri
• Writing for the Court: Walter J. Gresham, Kansas City, Mo., for defendant Hovey
• Citation: 88 F. Supp. 478
• Parties: WATKINS v. HOVEY et al.
• Docket Number: No. 6070.,6070.
• Decision Date: 28 January 1950

88 F. Supp. 478

WATKINS
v.
HOVEY et al.

No. 6070.

United States District Court W. D. Missouri, W. D.

January 28, 1950.

88 F. Supp. 479

H. C. Woods, Harry A. Hall, Kansas City, Mo., for plaintiff.

Walter J. Gresham, Kansas City, Mo., for defendant Hovey.

Wm. T. Alford, John A. McGuire, Kansas City, Mo., for defendants Hunter and LeVan.

REEVES, Chief Judge.

The motion to dismiss challenges the jurisdiction of the court. The plaintiff sues for the recovery of $1,000.00 deposited as earnest money on a contract for the purchase of specified real estate in Kansas City, Missouri. The contract was not carried out and the failure, as alleged in the complaint, was not the fault of plaintiff. Under such circumstances it was his belief that he was entitled to recover from defendants the $1,000.00 paid or deposited as earnest money.

Concerning the deposit the complaint reads: "* * * and the plaintiff alleges that he has exercised his right to declare the entire transaction void as provided for in the written memorandum as aforesaid." This was followed by an averment, "* * * that demand has been made both orally and in writing upon the defendants for the return of the $1,000.00 but the defendants have wholly refused and still continue to refuse to return same to plaintiff; all to his damage in the sum of $1,000.00." This was followed by an averment, "* * * that the acts of the defendants (in the premises) and in refusing to return the $1,000.00 are intentional, fraudulent, unlawful, wanton and malicious and the plaintiff is entitled to punitive damages therefor by way of punishment to the defendants in a further sum of $2,500.00." There was a prayer for damages in the aggregate sum of $3,500.00.

If the plaintiff is not entitled to punitive damages in this kind of suit, then this court is without jurisdiction and the motion to dismiss should be sustained.

An examination of the authorities discloses that punitive damages are not allowable in cases of breach of contract. This is an action for money had and received or upon an implied obligation to return the $1,000.00, if otherwise the plaintiff has complied with the conditions of the agreement.

In the case of Peitzman v. City of Illmo, 141 F.2d 956, the Court of Appeals, this circuit, discussed at length a case arising in the E. D. of Missouri and involving the state law on the same subject. On page 961 of 141 F.2d the court fully discussed the principle involved. The court said: "A tort is a wrong...