Jones v. Loomis , 1885 Mo. App. LEXIS 210 ( 1885 )

Ellison, J.

The petition is squarely case, and not assumpsit. There is no intimation of any contract or agreement concerning the actions complained of. On the trial, however, plaintiff offers evidence tending to prove a contract of the import of that set out by defendants in their answer. And the court gave, at his instance, instructions to the jury authorizing a verdict in plaintiff’s favor if they believed such agreement was had between the parties, but had not been performed by defendants. Thus plaintiff is permitted to sue for a tort, and recover for breach of contract; this cannot be done, as has been repeatedly held in this state.

Under the evidence and instructions referred to, the erection of the dam and flooding plaintiff’s lot was not “ wrongfully,” but was by plaintiff’s special license and permission. The injury lay in defendants not complying with their contract to protect the well and pay him the damages done. This was a condition subsequent. '

In speaking of a matter of this nature the supreme court in Sandeen v. Ry. Co. (79 Mo. 278), says: “There is nothing in it (the petition) to indicate that the defendant is called upon to answer for the breach of a promise, the consideration of which flowed from the fruits and benefits of a tort. Under our decisions there would seem to be a fatal variance between the statement and the proof.” Carson v. Cummings, 69 Mo. 325; Moore v. Hutchinson, 69 Mo. 429. “ Repeated adjudications of this court, if authority were really needed for so plain a proposition, have established that you cannot sue upon one cause of action and recover upon another.” Clements v. Yeates, 69 Mo. 623.

A quotation from Hubbard v. Ry. Co. (63 Mo. 68, 70), is especially applicable to this case. Judge Napton says, “ the petition alleges a wrongful and illegal entry, and the evidence shows an entry by leave, and consequently a legal one; but a failure to comply with the condition on which that leave was granted, a condition which was clearly a subsequent one. That the plaintiff has a cause of action on the testimony as exhibited in the bill of exceptions is most clear ; but the allegations in the petition present a cause of action totally different from the one presented by the proof.”

Under the pleadings in this case the issue was as to the existence of the contract set out in the defendants’ answer; defendants affirmed and plaintiff denied. If defendants sustained their answer by the proof, the building of the dam and flooding the lot was not wrongful, it was especially authorized by plaintiff, and if he wishes to hold defendants for their failure to comply with their agreement, it behooves him to so shape his case in the petition. He “could have stated the facts as they were and claimed the damages resulting from’’ defendants’ breach. Hubbard v. Ry. Co., supra, 71.

We are not unmindful that our opinion in this case is not in harmony with decisions in some other states, notably Brown v. Bowen (30 N. Y. 519), and Freeman v. Headly (33 N. J. 523). But we believe it to be in line with our own and many other states. This case cannot be distinguished from that of Baker v. Ry. Co. (57 Mo. 265), and others following. The conditions here, as in those cases, are clearly subsequent and not precedent. Plaintiff himself states, as shown by the record, “that defendants through their agent agreed to protect the well and premises, against the back water, or to pay all damages that might be caused thereby.” If the plantiff can maintain the action in its present form, it is likewise his right, or at least would have been, prior to this action, to have the pond abated as a nuisance, yet they and plaintiff have in effect an agreement before the erection of the dam, that if it should turn out to be a “thing that worketh hurt, inconvenience or damage” to plaintiff, they could satisfy him, by paying the “ damages that might be caused thereby.”

Some questions of license and the power of revocation in the licensor are raised by counsel. If a re-trial necessitates a reference to such questions, they will be found discussed in the case of House v. Montgomery, ante, p.—

The judgment is reversed and the cause remanded.

All concur.