Day v. Farley

100 Mo. App. 633 | Mo. Ct. App. | 1903

ELLISON, J.

Plaintiff is a barber and brought this action to recover fifteen dollars, the value of work done for defendant in shaving him. The answer set up that plaintiff and defendant had a contract whereby defendant sold to plaintiff a tombstone for fifty dollars, of a style to be selected by plaintiff. That of the said price he was to accept fifteen dollars worth of barber work (here sued for) as a part payment. That said barber work was done under such contract, and that he has at all times been ready and willing to furnish the tombstone, but that plaintiff, although often requested, has failed to make a selection thereof as he agreed. There was evidence tending to show the foregoing, but the court gave the jury a peremptory instruction to find for plaintiff, on the ground that such showing was no defense.

The ease should have been submitted to the jury. Judging from the briefs of counsel, the peremptory instruction was given on the ground that the matters stated constituted an executory contract and that defendant could only have an action of damages. We are, however, of the opinion that the authorities cited by plaintiff are not applicable to this character of case. The case is no more nor less than if plaintiff had contracted for the tombstone and had paid on the purchase juice, fifteen dollars in cash. It ought not to be contended that in such ease he could recover back the money, in face of defendant’s willingness and offer to carry out the contract. Plaintiff is relying upon rules of law, which, it seems to us, are without application to the case. The judgment is reversed and cause remanded.

All concur.