43 Mo. App. 185 | Mo. Ct. App. | 1891
This action was brought before a justice of the peace, where the complaint was as follows:
“Plaintiff.”
The contract referred to in the statement, and which was in evidence at the trial, is as follows :
“Contract for draining S. G. Elliott’s mining lands, made and entered into between S. G. Elliott, F. H. Brinkerñoff and certain miners, to-wit, J. Z. and George
“P. H. Brikerhoee.
“ J. Z. Taylor,
“George Taylor,
“M. O. Turpin,
“John McGill,
“L. D.-Gardner,
“Prank Rhea.”
I. The first point in defendant’s brief relates to the matter last above suggested. It is claimed that the plaintiff, having paid the costs adjudged against him in the justice’s court, was thereby shut out of the right to appeal to the circuit court, and, therefore, that defendant’s motion to dismiss the appeal should have been sustained. We do not assent to this view. Nor do the cases cited sustain any such contention. The holding of those cases is simply “ that a party who has accepted satisfaction of a judgment in his favor cannot afterwards appeal.” Robards v. Lamb, 76 Mo. 192; Cassell v. Fagin, 11 Mo. 207; Houck v. Swartz, 25 Mo. App. 20. And a further case, that might have been cited, is Waddingham v. Waddingham, 27 Mo. App. 607. In all of these, the party appealing had judgment in the lower court for some amount, and had enforced such judgment by collecting and accepting such award, and subsequently complained of such judgment in the appellate
II. In a review of the court’s instructions, given at the instance of plaintiff, we discover substantial error. By the terms of the written contract, plaintiff Brinkerhoff obliged himself to put in “agood pump of sufficient capacity to drain the grounds” of defendant Elliott, and that “ he would drain said grounds,” in consideration whereof he, the said Brinkerhoff, was to be paid certain amozznts,, etc. Here is a definite and clear undertaking by the plaintiff to drain the water from Elliott’s mining lands, — not that a part should be drained, or that all should be partially drained, — but the obligation assumed was, to completely drain the entire land which was the szzbject of the contract. However, the court instructed the jury as follows:
“1. The court instructs the jury that, if they believe from the evidence that the plaintiff put in a pump in the shaft designated in the contract introduced in evidence, that the same was of sufficient capacity to drain the mining lands of defendant Elliott, and did drain the same or any part thereof, then your verdict will be for plaintiff.”
We have italicized the objectionable words of these instructions. The clear import of the foregoing was to permit plaintiff to recover of defendant, although Brinkerhoff had not complied with his contract. He had agreed to drain a certain body of mining lands for a stipulated compensation. His engagement was to do a certain thing, and, under these instructions, .he may recover, although he has not done that thing. Thus declaring the law to the jury was clearly erroneous.
The rule is “that when a party, by his own contract, creates a duty or charge upon himself, he is bound to make it good, notwithstanding any accident by inevitable necessity, because he might have provided against it by contract.” Hall v. School District, 24 Mo. App. 218; Harrison v. Railroad, 74 Mo. 371; White v. Railroad, 19 Mo. App. 401. This undertaking by Brinkerhoff to drain Elliott’s mining lands is not, by the terms of the contract, subject to any qualification or contingency. He was, by his own agreement, absolutely bound to perform the work, and the performance thereof is a condition precedent to a right to compensation. If plaintiff desired any qualification to this agreement on his part, he should have called for, and procured, such to be entered into the body of the writing. It is no part of the duty of the court to interpolate such conditions. The parties must abide by the plain terms of their contract. It follows then that the court erred in telling the jury that the plaintiff might recover even though he had not performed his undertaking.
There is here no room for excuses for non-performance such as the alleged “neglect of the miners,” or the
III. It follows from what has been said that we must reverse this judgment and remand the cause.
Since, however, a new trial may be had, we deem it proper to give our views on some other questions regarding the construction of the written contract sued on. In view of the situation of the parties at the time this ■•contract was entered into, and in view as well of the lay ■of the milring lands of Elliott, and the other circumstances conclusively shown by the evidence, we regard ,.it as reasonably certain : First, that by the “mining ■lands of S. G. Elliott,” named in the contract, is meant ■ only the six lots worked by the miners, the two Taylors, 'Turpin, McGill, Gardner and Rhea; second, that Elliott was looked to for payment of the pump royalty. It was expected that he would, under the rules and regulations controlling his mining lands, collect this from the six individual" miners signing the contract, but that as ■ between Brinkerhoff and Elliott, the latter was to settle with Brinkerhoff for such pump royalty. The only •obligation assumed by the six miners (outside of the .amounts to be paid to Elliott as pump royalty) was to pay in a certain event fifty cents a day each for water privileges.
The judgment is reversed and the cause remanded.