72 Mo. App. 34 | Mo. Ct. App. | 1897
At the second trial it seems that the plaintiff in a measure supplied the deficiency in the proof, on account of which we reversed the judgment on the first appeal. The proof of the agreement presented by the present record we think justified the submission to the jury.
In Harrison v. R’y, 74 Mo. 364, the defendant offered in evidence a written contract of affreightment entered into on the twenty-sixth day of June and requested the court to tell the jury, by an instruction, that the verbal contract for furnishing cars on the twenty-fifth day of June was merged in the written contract and that the plaintiff could not recover. The court, in the course of its opinion, say this instruction was properly refused, on the ground that the breach of the verbal contract occasioning the damages for which plaintiff sued had occurred before the written contract was entered into and there was nothing in the latter amounting to a release of defendant from liability for such breach, nor was there anything in such latter indicating that such was the intention or that the plaintiff had waived any right already accrued. It related entirely to the future and not to the past.
There is nothing in the written contract in the present case amounting to a release from the liability arising out of a breach of the verbal contract, nor indeed is there anything indicating such an intention,, or that plaintiff waived any right that had accrued.
The defendant requested an instruction telling the jury that “in ascertaining the damages on account of the delay in the transportation of plaintiff’s stock you should fully take into consideration the market price of such cattle on their arrival at Kansas City, on March 9, 1894, and their market price at the time that they should have arrived at Kansas City, if there had been no delay in the transportation. The difference in the market price of said cattle at the time that they should have arrived at Kansas City, and the time they actually did arrive there, would be the damages that plaintiff sustained on account of delay in transportation.” This instruction was refused. It embodies the rule as we have stated it to be. It is, as is seen, at variance in its enunciation with the contention of the defendant, as stated by us and set forth in its brief. It should have been given, and especially so since that given for the plaintiff is quite faulty.
It told the jury “to find for the plaintiff the decrease in value of said cattle in the market at Kansas City at the time of their arrival there for market on account of the failure in shipment,” etc. It is obvious that it does not go far enough. It does not, as it should, tell the jury to find the difference in the market price at Kansas City between the date when the cattle should have reached there had defendant complied with its verbal contract and that on which it did arrive there.
The judgment, on account of the errors already noticed, must be reversed and cause remanded.