Denny v. Kile

| Mo. | Jul 15, 1852

Gamble, Judge,

delivered the opinion of the court.

This was an action of assumpsit by Denny, the appellant, against G. and J. Kile, in the Saline Circuit Court, upon a written agreement, and was tried on pleas of non assumpsit and set off, at the last November term, when the defendants had a verdict and judgment.

By the agreement, the defendants were to cultivate, on their own, and their father’s farms, one hundred and fifty acres, in broom corn, and deliver the brush, cleaned and baled, ready for shipment, to the plaintiff, at the defendants’ drying house, as fast as it could be prepared — all to be delivered before the 20th of September, 1845 ; and the whole process, from the preparation of the ground to receive the seed, to the baling for shipment, to be “under the direction and control” of Denny, who was also to procure seed corn and a machine to plant it, and either to get a baling press, or a model by which to construct one, and cylinders for cleaning the brush. Denny was to pay the defendants for the brush, fifteen hundred dollars, as follows : before the time of harvesting, as much money, not exceeding five hundred dollars, as would be necessary to prepare for harvesting and saving the brush; at the time of harvesting, as much as would be necessary for saving and preparing the brush for shipment, and the balance on the delivery of the whole produce of the land. Denny was not to pay for ground on which, the crop might be destroyed by an overflow of the river — 'the whole risk from an overflow of the river resting on the defendants ; and if the river should not leave ground enough to refund what Denny should advance, he was to receive this excess the next year in broom corn, at the same rate, and was to have a lien on the houses and machinery, put up to complete the contract, for the money advanced.

The bill of exceptions does not preserve the evidence, but declares that the plaintiff gave evidence conducing to estab - lish the agreement sued on ; that the plaintiff complied with his part of it by furnishing the seed planter, baling press, and cylinders, and the money he was required to advance, and that the defendants had failed to comply with their part of the contract by cultivating the required quantity of land, or doing the work in a farmerlike manner, or according to the plaintiff’s instructions ; and that there were about thirteen bales of brush, the produce of the land, at the defendants’ drying house, which they refused to deliver to-the plaintiff when demanded. The record shows that the defendants gave evidence conducing to prove the reverse of the facts set up by the plaintiff: that the agreement was obtained from them by fraud ; that the defendants were farmers, and. unacquainted with the cultivation or preparation of broom corn for market, and that the plaintiff was skilled in the business ; that the plaintiff made to the defendants false and fraudulent representations, during the treaty for the contract, as to the number of hands necessary for the work, and the capacity of the drying house to dry out the brush; that the plaintiff failed to instruct them as to the proper mode of doing the work; that the baling press and cylinders were badly constructed, always getting out of repair, and unfit for the purpose for which they were intended ; that the plaintiff furnished, with the press and cylinders, a horse power to drive the machinery, and that this horse power was badly constructed — generally out of repair, and unfit for the work ; that the defendants had built their drying house according to the plaintiff’s instruction; that it was badly constructed, and afterwards, during the season, was burned down, with the brush in it ;■ and that the plaintiff took the control and management of the whole business. Upon the trial, the plaintiff objected to the proof in relation to the horse power, which was overruled, and the evidence received.

1. It is apparent from the statement of the case, that Denny was to exercise a direction and control over all the acts of the defendants Kile, in the whole process of cultivating the broom corn, and harvesting and preparing the crop for market. The want of skill, if any appeared in the management of the crop by the defendants, was not a ground of complaint on the part of plaintiff, unless there was a failure to comply with his directions.

2. It is stated in the record that evidence was given of fraud practised by Denny, in procuring the contract from the defendants. This evidence rendered it necessary that the plaintiff, in every instruction he asked, which asserted his right to recover upon the special contract, should require the jury to find the contract to have been obtained in good faith. If it was procured by fraud, he could maintain no action upon-it, whatever might be his right to recover the money received by the defendants.

3. As the plaintiff had the control and direction of the whole work, when he furnished to defendants machinery, such as that called the “ horse power,” to be employed in the preparation of the crop for market, delays in the work, occasioned by defects in that machinery, were delays occasioned by him, or to which he must be understood to have assented, and it, was competent for the defendants to give evidence of such de-’ fects, as in several counts in the declaration they are charged with the breach of contract “ that they did not deliver the corn cleaned and baled, ready for shipping, as fast as the same could have been prepared by them.”'

4. The contract between the parties contains various stipulations on each side, some on the part of the plaintiff, which are conditions precedent to other? made by defendants, some on either side which are mutual and dependent. An instruction asked by plaintiff, which asserted his right to recover upon any stipulation on the part of defendants, could not properly be given, unless it required the jury to be first satisfied of the performance by the plaintiff of all acts which, by the contract, were conditions precedent to the obligation of the defendants, or his readiness to perform those which were to be performed concurrently with the act of defendants.

It is believed that the principles here stated cover all the points raised upon the instructions asked by the plaintiff which were refused by the court. Those given at the instance of de - fendants are free from objection. It has been urged that, as there are common counts in the declaration, the plaintiff was entitled to recover upon them,- although he may not have shown sufficient to recover on the special counts. An examination of the instructions of plaintiff, which were refused by the court, will satisfy any mind that they are directed to the special counts alone, and that, those counts being before the jury, the instructions were properly refused. The cause of action and the measure of recovery, under the special counts, were different from those under the common counts. No instruction asked and given for the defendants concluded the right of plaintiff to recover on the common counts.

It has not been thought necessary to examine separately the twenty-six instructions upon which the Circuit Court acted. Such examination could only be profitable if the case were again to be tried, or if the questions arising upon them were of general interest.

The judgment of the Circuit Court will be affirmed.