Moore v. Waldo , 69 Mo. 277 ( 1878 )

Norton, J.

The petition in this case was filed August 22nd, 1874, and shows that plaintiff and defendant entered into a written contract by which defendant, in consideration of certain mechanical work in excavating a cellar, building house, stable, &c., to be completed by plaintiff on or before October 15th, 1873, was to give to plaintiff two certain horses. The petition alleges a performance of the contract on plaintiff’s part, and the failure of defendant to deliver the horses; alleges that the horses were worth $200, for which amount the plaintiff asks judgment, and also for-$50 for extra work alleged to have been performed for defendant by plaintiff at defendant’s request.

The answer denies the performance of the contract by plaintiff, and also claims damages for failure of plaintiff to complete the work in the manner and time specified in the contract, and also pleads a supplementary written contract, showing acknowledgment by plaintiff that he had failed to perform the original contract, and agreeing to go on and complete the work if defendant would furnish nails to plaintiff and pay plaintiff’s taxes then due. The answer alleges that by the supplementary contract defendant was to retain the horses until plaintiff repaid him the amount paid out by defendant for nails and taxes, and alleges that defendant paid for plaintiff for the purpose of procuring the nails aforesaid to be-used in the work, and of liquidating taxes of plaintiff' then due, the sum of $21.13, and that this sum was never repaid to defendant. The answer also denies that any extra work was done by plaintiff for defendant. Eor a further answer defendant claims the sum of $100 damages for plaintiff’s failure to complete the work within the time agreed upon; the sum of $50 for the unworkmanlike manner in which part of the work was performed ; the sum of $50 for failure to construct defendant’s stable according to the dimensions specified in the contract; the sum of $25 for failure to clear defendant’s cellar of rock and dirt; the sum of $21.13 for failure to repay the amount advanced to enable plaintiff to buy nails and pay taxes; and the sum of $24 for trouble defendant experienced in having to keep and winter the horses by reason of plaintiff’s failure to complete the contract and take them off of his hands.

Plaintiff’s reply controverts the new matter set out in defendant’s answer.

Each party introduced evidence tending to prove the issues on his part, and defendant also introduced the supplementary contract, which was in words and figures following, to-wit: “ I, A. J. Moore, of St. Clair county, Missouri, having failed to comply with my contract with Peter Waldo in building his house, hereby agree that if he will furnish me $30 in order to purchase nails and pay taxes, or furnish nails and pay taxes for that amount, or nails sufficient to finish the job, I will proceed and finish the work under the contract aforesaid, by the 10th day of November, 1873, in the best workmanlike manner under said contract, and agree that after the work is all done, said Waldo is to retain the horses I am to receive, until I repay him the money advanced' by him.

Witness my hand this 1st day of October, 1873.

(Signed) A. J. Moore.”

Defendant asked the following instruction number two, which was refused by the court, to-wit: The court declares the law to be that the written acknowledgment of plaintiff on the 1st day of October, 1873, that he had failed to comply with his contract, prevents him from recovering at all, unless it is shown that he afterwards fully complied with both the original and supplementary contracts. The court, of its own motion, gave the following declarations of law, to-wit: 1. The court declares the law to be that in no case can plaintiff recover more than the reasonable value of the horses contracted to be given for the work, together with extra work ordered, if the court shall so believe-, diminished by the amount paid out by defendant for nails and taxes, and damages defendant sustained by failure of plaintiff to complete the work in time, and in not completing it according to contract, and in cutting down defendant’s stable, provided the court is satisfied the same was cut down without permission. 3. That a full compliance with the contract on plaintiff’s part, both as to matter and time, is essential to the recovery of a judgment by him, provided there was no subsequent modification or acceptance of modification by "Waldo, express or implied.

The finding of the court was for the plaintiff, and judgmeut was rendered in his favor for $112.87. The defendant assigns for error the action of the court in giving and refusing instructions. The instructions given by the court, of its own motion, as shown by the record, were not excepted to by defendant, aud cannot, therefore, be brought in question here. They are in substance the same as the first and third asked by defendant and refused by the court.

The only matter of exception, therefore, for determination is, the refusal of the second instruction asked by defendant. This instruction predicates the right of plaintiff on proof of his full, compliance with the terms of the original and supplementary contracts. It might well have been refused, because the principle announced by it is fully recognized by the court in the third instruction. It is also fatally defective in holding plaintiff bound to a full compliance with all the terms of the supplementary contract without reference to the fact of compliance therewith on the part of defendant. The right of defendant to retain the horses under that contract was dependent on his advancing money for payment of taxes and nails as therein stipulated, and until such advancement was made by defendant, plaintiff was under no obligation to observe its terms. This matter of advancement under said contract, was directly put in issue by the pleadings, and because it was wholly ignored in the second instruction, it was properly refused. The principle contended for by defendant, that when a party sues on a special contract, he must recover only thereon, being fully recognized in the instructions that were given, we think the judgment should be affirmed, which, with the concurrence of the other judges, is done.

Affirmed.