Davis v. BrownDavis v. Brown
- Reporters:
- Before:
- Napton
The only error alleged in this case is the 4th instruction given by thе court at the instance of the plaintiff. That instruction -was as follows : “ If the jury believe from the evidencе that there was water sufficient in the old pond for dеfendants’ cattle as long as said cattle remаined in said pasture, although the new pond was not built, then they must find for the plaintiff for the time said cattle were allowed to remain in said pasture by defendants.”
The action was a special contract, сontaining stipulations that the plaintiff would dig an additional pond, or throw up a’dam over a creek which ran through the pasture, so as to furnish sufficient water fоr defendants’ cattle during the, grazing season. This instruction sеems to allow the plaintiff to recover on а quantum meruit, although the suit was on a special contraсt, which was alleged to have been faithfully kept by рlaintiff. It is well settled in this State, that where a party fails tо conform to the obligations imposed on him in an аgreement, he cannot recover on the sрecial contract, but, if his services or materiаls are of value to the other party and accepted by such party, he is entitled, in a suit on a quantum meruit, to recover the actual value of the work оr services or materials, not exceeding the contract price, deducting such damages as have resulted from a breach of the agreemеnt. The most recent cases on this subject are Eyerman v. Mt. Sinai Cemetery Association, 61 Mo. 490; Yeats v. Ballentine. 56 Mo. 530. This instruсtion was consequently erroneous. But the defendants proceeded to ask a series of instructiоns, based upon the same theory adopted by thе court in the 4th instruction for plaintiff, and the court gave them all.’ The *315substance of these instructions is that, if the рlaintiff failed to make the new pond or dam up the creek, and by reason of such failure the defendants sustained damages in losing part of the grazing season for want of water, and the jury should think such damages exceeded the amount duo on the contract, they would find for the defendant such damages, not exсeeding $300, (the amount claimed in the answer,) and, if they shоuld believe the damages amounted only to $175, they would simply find for defendant; and, if they should believe it less than that, they would deduct the damages from the $175 due. The verdiсt of the jury was for the plaintiff for $123, that is for the balance due on the contract, minus $52 which apparеntly the jury thought was the value of the injury received by defendants. Considering all the instructions together, we do not sеe how the jury could have been misled, and the verdict seems to show that they were not. It hardly lies in the mouth of the defendants to object here to a technical blunder, growing out of the form of the action, which they waived on the trial by adopting the error. The judgment is affirmed.
Affirmed.