Knettle v. Scott , 1885 Mo. App. LEXIS 354 ( 1885 )

Opinion by

Hall, J.

1. The defendants complain here of the action of the circuit court in giving the instruction asked by plaintiff. That instruction, abstractly, is clearly correct. Beach et. al. v. Curle's Adm'r, 15 Mo. 105. The only question on this point is, whether there was any testimony on which to base the latter part of that instruction. But it would seem that the jury might have been authorized to infer, from the latter part of defendant Scott’s testimony, above quoted, “that the plaintiff agreed to furnish the defendant’s threshing to pay said balance,” and not, as submitted in defendant’s instructions refused, that the plaintiff agreed to accept a certain amount of threshing in part payment for the machine.. We cannot, therefore, say that the court erred in giving said instruction.

2. The defendants further complain of the action of the trial court in refusing to give instructions numbered three and four, asked by them. The testimony of the defendants was unquestionably sufficient to justify the court in submitting to the jury the question whether the plaintiff had sold the machine to the defendants for six hundred dollars in money, and for a certain amount, to-wit: two hundred dollars of threshing, to be furnished by plaintiff; provided that this fact, had it' been found by the jury, would have constituted a defence to this action, in connection with the other facts in proof.

If it be true that defendants were to pay in part for the machine in two hundred dollars’ worth of threshing, to be furnished by plaintiff, and that defendants were able, willing, and ready to do said threshing in accordance with their agreement, we do not think that the plaintiff could waive the contract and recover in money in lieu of the threshing.

“ Here is no failure of proof of the special contract; it is proved precisely as laid down in the declaration; and to allow the plaintiff to waive it, and recover back the consideration, would be permitting them entirely to change the contract, and recover in money when payment was to be made in the performance of services ; and this, too, without any default on the part of defendant.” Wilt and Green v. Ogden, 13 Johns. 57; see, also, Ruggles v. The Rochester City Bank, 3 Comstock 91; and Davidson v. Overhulser, 3 (Greene) Iowa 197.

The cases of Edwards & Cravens v. McKee (1 Mo. 123), and Beach v. Curle's Adm'r (15 Mo. 105), do notin any manner conflict with these well established principles.

In the first of these cases, “ it was proved by plaintiff that * * * as the defendant was returning home with sundry horses, * * * the defendant represented to a witness that he had purchased said horses, together with a wagon and gears, from Cravens, the intestate — that the terms on which he had purchased were, that he was to keep the horses, wagon, and gears, until the Christmas next ensuing, at which time he had his election, either to return the said horses, wagon, and gears, to Cravens, or to keep them at the price of $400, to be paid by the 25th of December, next year; and that defendant said that he considered the' contract advantageous, inasmuch as he was to have the privilege of paying the said sum of four Mmdred dollars, or a part thereof in hauling. * * *” The court said: “With respect to the instruction of the court to the jury, on application of defendant’s counsel, the circuit court did err on that point. The court instructed the jury, if they should find the defendant had the privilege of paying the whole sum, or any part thereof, in hauling, they should find for defendant. This is not the case of a contract in the alternative, but it is to be viewed as a means by which the payment of money may be defeated, and is nothing but a defeasance ; but after the time limited for payment had elapsed, the action will well lie.”

In that case the primary liability assumed by defendant was not to do so much hauling, but was to pay so much money. The liability to pay the money would have been defeated by doing the hauling. The right to do the hauling had been lost by the defendant, and, therefore, his primary liability to pay the money remained. But in the case in hand, as considered under this point, the primary liability of defendants was not to pay two hundred dollars, but was to do for plaintiff a certain amount of threshing. By doing the threshing, as they offered to do, they would not have defeated their liability to pay said sum of money, but they would have completed the payment of the machine, in accordance with their agreement. Had the defendants refused to do the threshing, they would have been liable to plaintiff in the sum of two hundred dollars in money, not in payment of the machine, but as damages for a breach of their agreement, fixed at said sum by said agreement. In the case of Beach v. Curle’s Adm'r, supra, the defendant asked the following instruction:

“That if J. A. and J. P. Eddy contracted with Curie* & Scott to advance the necessary funds for the purchase of the boat, and if the drafts given in evidence, or any of them, were given in payment for said boat, and if it was agreed between the Eddys and Curie & Scott that-the money thus advanced was to be refunded/ out of the proceeds of ■ the sale of coal transported by Curie & Scott from the Kingston mines, and if the said J. A. Eddy was then a member of-the firm of Beach & Eddy, and endorsed the said drafts in the name of Beach & Eddy,'for the purpose of raising money to-purchase-said boat, in'pursuance of the'contract of the two Eddys with Curie &• Scott, and if the said Curie & Scott were prevented by the said J. A. and J. P. Eddy from refunding the said money from the proceeds of the sale of the coal by reason of a failure of the said J. A. and J. P. Eddy to furnish said coal for transportation, then the plaintiffs are not entitled to recover for the amount so advanced,, and so prevented, by the act of the two Eddys, from being refunded.”

In speaking of said instruction the court said :

“The last instruction does not contain a correct' proposition. If one promises to pay a sum of money, and the creditor undertakes, at the same time, to give-the debtor employment, to enable him to pay the debt, the failure to give the employment cannot discharge the-debtor from his obligation. Such a case is not within the rule which discharges the promisor where he has been prevented, by the act of the promisee, from performing the contract. It may give the debtor a right of action against his creditor for damages, but it is obvious that it would be a violation of justice to permit him to plead such a failure in discharge of his undertaking. It would be assuming that the measure of damages for the breach of such contract would be equal to the debt, whereas, in fact, no damages may have been sustained.”

The difference between the instruction in that case and the instructions on account of whose refusal the defendants in this case complain, is very great.

In that case the primary liability of Curie & Scott was to 'pay the money advanced to them ; that money they had agreed to pay; the employment to be furnished them was-to enable them to pay that money. But in this case, as supposed in defendant’s said instructions, the defendants never agreed to pay the said $200; the primary liability assumed by them was to do certain threshing. Their-.contract was not to pay .for the machine with $200, but with a certain amount of threshing. And this case, as put in those instructions, falls within the rule alluded to, and not changed by the court in that ■case, “ which discharges a promisor, where he has been prevented by the act of the promisee, from' performing the contract.” If, by their agreement, defendants were to pay for a certain part of the machine by doing a certain amount of threshing, we know of no principle of law Tby which plaintiff, of his own will only, can require them to make said payment in money.

The two cases in the first and fifteenth Missouri Reports are authority in support of the action of the circuit court in giving the instruction asked by the plaintiff; but they do not support the action of that ■court in refusing to give instructions numbered three and four, asked by defendants.

On account of that refusal, the judgment of the cir•cuit court is reversed, and the cause is remanded.

All concur.