Goff v. Mulholland

28 Mo. 397 | Mo. | 1859

Napton, Judge,

delivered the opinion of the court.

The testimony in relation to the necessity of building a wall around three sides of the plaintiff’s lot, and the expense which such a wall would occasion, was, in our.opinion, irrelevant and incompetent. The plaintiff had a right to retain his lot in such a shape and condition as suited his fancy, and it did not concern the defendant to make calculations as to the amount of expenditure which the indulgence of the plaintiff’s taste might occasion. The question for the jury was, how much the value of the lot was diminished, by the defendant’s trespass, for the purposes to which it was designed ; and it was not, to what expense the plaintiff would be put in protecting it, or in building on it, or whether, upon the whole, the plaintiff might not find it to his advantage to put a business house upon it; for which purpose, all the testimony seemed to concur, the grading of the lot was really advantageous.

The first and second instructions given for the defendant were erroneous. A plea of accord without satisfaction is not a good plea in trespass. (2 Whea. Selwyn, 1354.) An agreement to curb the lot, if not executed, is no bar to the action, and such an agreement could not amount to a waiver or condonation of the trespass. A party can not be turned round from one cause of action to another unless the second is received as a waiver of the first or as a satisfaction of it. In James v. David, 5 T. R. 141, the plea to an action of trespass was that both parties had agreed to settle all matters in dispute between them by the payment of a certain sum on one side and by entering into a bond with a penalty that neither would commence an action against the other, but the judges held the plea to he bad. Mr. Justice Ashhurst said, “ that in order to found an action on this agreement, the plaintiff must have stated not only the agreement, but also that he tendered an obligation in ¿£100 ready executed to the defendant, and that the defendant refused to execute,” &c. Here the question does not arise upon the form of a plea, but it is manifest from the evidence that the agreement, which is set up as a- bar, is one of which the plaintiff could not have availed himself, as it was only proved by his own declarations. If the plaintiff had received a sum of money in satisfaction of the trespass, that, of course, would be a bar; so, if he had received the defendant’s note for that sum in satisfaction of his demand for damages; but a mere verbal promise to pay a certain sum of money or do a certain act, if not performed, is no satisfaction. Such promises could hardly amount to an accord, and certainly not to accord and satisfaction, and are no bar to the action, although, if amounting to an accord, 'they might be evidence upon the quantum of damages.

The other judges concurring, the judgment is reversed and the cause remanded.