Dunnevant v. Mocksoud

122 Mo. App. 428 | Mo. Ct. App. | 1907

BLAND, P. J.

(after stating the facts). — 1. In a suit at law for a money judgment, where there is but one count in the petition, and but one in a counterclaim filed, there can. be but one judgment (R. S. 1899, sec. 726). The plaintiffs’ demand was admitted by the pleadings, hence there was nothing to submit to the jury but the issues raised by the counterclaim and the reply thereto. The direction to the jury, to return a verdict for the plaintiff for $2,651.62, was premature, and the procedure irregular, and defendants might have taken an exception thereto and, in the event the court had refused, on proper motion, to set aside the verdict, successfully prosecuted an appeal to this court. By acquiescing in the direction of the court to proceed to trial on the counterclaim, and by the introduction of evidence tending to prove the same, defendants waived the irregularity (Miller v. Railroad, 162 Mo. 424, 63 S. W. 85) and as they were not prejudiced by the action of the court in prematurely directing the verdict for plaintiffs, the irregularity furnishes no ground for a reversal of the judgment. [Seay v. Sanders, 88 Mo. App. 478; Miller v. Railroad, supra.]

2. The point is made by plaintiffs, that the non-suit taken by the defendants was a voluntary one and, therefore, no appeal would lie. On the evidence of Neimy, that plaintiffs had breached the contract to build the house and deliver it to defendants in twenty-two days, defendants were undoubtedly entitled to at least nominal damages on their counterclaim; but they asked no instruction whatever and, on an adverse ruling of the court as to the admissibility of certain evidence, took a nonsuit.

In Greene County Bank v. Gray, 146 Mo. 1. c. 570, 48 S. W. 447, the court, through Brace, P. J., said: “This court entertains jurisdiction to review the action of the circuit court in such cases (of nonsuit) only when the circuit court upon the trial of the cause decides questions which cover the plaintiff’s case, precludes a recovery and obliges him to submit to a nonsuit. It cannot interfere in cases where parties voluntarily or needlessly take a nonsuit” (citing a number of Missouri cases, and adding), “When a voluntary nonsuit is taken the plaintiff abandons his action and from the judgment entered upon it no appeal will lie.”

In McClure v. Campbell, 148 Mo. 96, 49 S. W. 881, it is said: “Until an instruction is given in writing there is no such adverse ruling of the court as precludes a recovery by plaintiff. So that when defendant demurred to plaintiff’s evidence, and the court announced that it would grant such instruction, and plaintiff thereupon asked leave to take a nonsuit with leave to move to set the same aside, such nonsuit was voluntary.” A like ruling, under like circumstances, was made by us in Graham v. Parsons, 88 Mo. App. 385; Carter v. O’Neil, 102 Mo. App. 391, 76 S. W. 717. The rulings in these cases are based on a state of facts where the plaintiff’s case could only be uprooted by an instruction to the effect, that on the evidence plaintiff could not recover, and should be construed in the light of these facts.

In State ex rel. v. Thompson, 81 Mo. App. 1. c. 559, in respect to the rule, we said: “The rule is that so long as the trial court leaves the plaintiff a substantial cause of action, his withdrawal from the court must be regarded as voluntary and deprives him of the right of appeal. [Chiles v. Wallace, 83 Mo. 85; Roeder v. Shyrock, 61 Mo. App. 487; Lorin v. Cook, 60 Mo. 564; Layten v. Riney, 33 Mo. 87.] When the court ruled that the recovery must be confined to nominal damages it did not leave to relator a substantial cause- of action within the meaning of the decisions.”

The counterclaim alleged substantial damages ($2,385.46) caused by the failure of plaintiffs to complete the building in the time agreed upon. All evidence tending to prove this damage was excluded by the court, thereby denying defendants the right to recover for the only breach of the contract relied upon by them to offset the balance due plaintiffs on the contract price of the building. In this state of the case the non-suit was not voluntary.

The counterclaim alleges defendants lost the net profits of nineteen exposition days, on account of the delay in the completion of the building, and that their damages should be measured by the net profits made for nineteen days immediately following the twenty-third of August, amounting, as alleged, to the sum of $2,385.46. In the colloquy between the trial judge and plaintiff’s counsel, in respect to the admissibility of the excluded evidence, as well as in the brief of counsel, it appears defendants sought to prove their damages by introducing evidence of the net profits realized from the operation of the theater for the nineteen days immediately following August twenty-third. The learned trial judge ruled that such evidence would only tend to prove speculative damages, and excluded it.

It is the general rule that every person is responsible for the natural and usual consequences of his acts, and hence remote or speculative damages cannot be recovered for a breach of contract, unless stipulated for in the contract. [Hughes et al. v. Hood et al., 50 Mo. 350; Clemens v. Railroad, 53 Mo. 366.] When damages that might result from the breach of a contract to be performed in a specified time are unusual or extraordinary, it is prudent and customary for the parties to agree in advance what the damages shall be for delay; if they fail to do so, the recovery of the injured party will be confined to .such damages as ordinarily result from delay in the performance of similar contracts. [Callaway Mining and Mfg. Co. v. Clark, 32 Mo. 1. c. 309; Ijams v. Life Assurance Society, 185 Mo. 477, 84 S. W. 51; Taylor v. Maguire, 12 Mo. 313; Ib., on second appeal, 13 Mo. 517; Connoble v. Clark, 38 Mo. App. 476; Wilson & Son v. Russler & Gnagi, 91 Mo. App. 275.]

The case of Gildersleeve v. Overstoltz, 90 Mo. App. 518, cited and relied on by defendants, does not militate against this rule, as the damages in that case arose out of the commission of a trespass and the destruction of plaintiff’s property, and a direct injury thereby to his business. But the defendants were entitled to at least nominal damages on their counterclaim and the evidence-of J. E. Neimy, and the court erred in refusing to hear any evidence whatever. For this error, the judgment is reversed and the cause remanded.

All concur.