6 Mo. App. 490 | Mo. Ct. App. | 1879
delivered the opinion of the court.
This is an action to recover damages for breach of a written contract between the plaintiff, as party of the second part, and the defendants, of the first part, the material por
The petition alleges that the defendants, on March 17, 1877, when the contract was made, owned and operated a distillery of large dimensions and capacity, where they, manufactured yeast; that in consideration of the fact that the plaintiff would give his entire time and attention to the manufacture of compressed yeast for three years after the first day of April, 1877, at the distillery, and would manufacture a merchantable article, they agreed by the contract to continue the manufacture of such compressed yeast during the three years, they to furnish the necessary material and to use reasonable efforts to dispose of the yeast by sale ; that they would pay plaintiff twenty per cent of the gross cash receipts arising from the sale of the yeast dui’ing such periods, in monthly instalments.
The petition alleges that the plaintiff performed his obligations under the contract, and is still ready to do so ; but that the defendants, on the fourth day of July, 1877, discharged him, and have since prevented him from going on with his contract, etc. The answer admitted the execution
It appeared’ that the defendants owned and managed a distillery in St. Louis, and that the plaintiff entered upon the performance of the contract there. There was evidence tending to show that the plaintiff had been a practical distiller and yeast-maker in Hungary, and that before entering into the contract he made a trial of his skill as a manufacturer of compressed yeast at the defendants’ distillery in St. Louis ; that he continued to act under the contract until July-4, 1877, when he was discharged. There was evidence to the effect that he faithfully executed his part of the contract ; that while he was at work the defendants furnished the implements and materials at their expense; and that the plaintiff procured agents to sell the yeast, who sold at prices fixed by the defendants, the defendants receiving the proceeds of the sales. The evidence was conflicting as to the good or merchantable quality of the yeast, and as to its use for baking purposes. The defendants adduced evidence tending to prove they were compelled to throw away the greater portion of the yeast on account of its quality. The jury returned a verdict for the plaintiff for $2,500, and the defendants appealed.
The following instructions, given for the plaintiff, show the theory upon which the case was put to the jury: —
“ The jury are instructed that the contract between plaintiff and defendants, as the same is set out in plaintiff’s amended petition, stands admitted; that by said contract the plaintiff did not warrant that he could or would manufacture for defendants compressed yeast of a certain quality or excellence, but only that he could and would manufacture for defendants a merchantable quality of the article commonly known as compressed yeast. If, therefore, the jury find from the evidence that plaintiff, while
“The court instructs the jury that if they find for the plaintiff' they will assess his damages at such sum, not exceeding eighteen thousand dollars, as they may find from the evidence plaintiff would have made as his share of the contract, if plaintiff would have continued in defendants’ employ under said contract for a period of three years from and after April 1st, 1877, less what plaintiff may be actually able to earn during the same period by reasonable diligence. And the jury are further instructed, that while the sales made by defendants of compressed yeast while plaintiff was in their employ, or since, are not in themselves a true indication of sales which defendants would likely make during the period of three years, yet the jury may take the same into consideration, with other evidence showing the probability of the increase or decrease of defendants’ business as affected by competition, fluctuation of trade, or other causes, for the purpose of determining the amount actually lost by plaintiff’ by the breach of the contract.”
The objections that there is no mutuality in the contract, that it does not appear that the defendants were bound to furnish any employment to the plaintiff, or any materials to be used in the manufacture of the yeast, are not well taken. The plaintiff agreed to manufacture the yeast, at the distillery which belonged to the defendants, for them, and they agreed to pay “ for his service.” The term of the contract is prescribed, and the plaintiff agrees to give his entire time, and not to assist any other party in the manufacture, as long as the contract shall be in force. The plaintiff is to be paid each month. The meaning of the contract, if well-settled
' It is urged that the terms of the contract furnish no means of computing any damage arising to the plaintiff by a breach of it. But the fact that there may be difficulty in computing the damages is not to enable the party who has made the contract out of which the difficulty grows, and then broken it, to escape with nominal damages. Here there was evidence tending to prove the quantity of yeast made by the plaintiff, and the prices it was sold for by the defendants, during the time the plaintiff was actually employed ; as also to prove the business was least profitable in the beginning of such an enterprise. The question here did not relate to profits ; the plaintiff was to be paid twenty per cent of the gross cash receipts. The difficulty, however, consisted in saying how far, in respect to the gross receipts from future sales, the sales of the past would afford a test by which to determine those of the future. That past sales, and even under certain circumstances past profits, may be an element which, with testimony as to the probable amount of future business, is competent to go to the jury, seems now well settled. There is, however, no presumption, because the business has been of certain proportions, or attended with certain results, that it will continue such in the future; and therefore there should be testimony establishing the connection, and tending to show the amount and character of future business as compared with that of the past. Lewis v. Insurance Co., 61 Mo. 535; Alfaro v.
It is complained that the court below erred in refusing to grant to defendants a new trial on the ground that after their counsel had closed his argument to the jury, and during the final address of the plaintiff’s counsel, the latter made certain statements as to the amount of a verdict rendered by a jury upon a former trial of the case. It appears that the plaintiff’s counsel stated to the jury that upon the first trial of this cause the jury found in favor of the plaintiff the sum of $5,000. To this the defendant’s counsel objected, and the court then sustained the objection, and ruled that such statement was not proper to be made before the jury. The record then states that “ said counsel for plaintiff, by way of apology for his action in this regard, replied, •in the presence of the jury, that such former finding, was a matter of record in this case.” This statement of counsel as to the amount of the previous verdict was highly improper, and should not have been made. That verdict had been set aside, and the fact that there might have been a minute of it upon the papers in the case was no justification of the remark. The jury had nothing to do with any such verdict, and the fact that it had been rendered should not have been Called to their attention. We should reverse the judgment in this case were it not that the record shows that the coiirt.ruled that such statement was not proper to be made before the jury, and sustained the objection. It must be considered that this action of the court had the effect of doing away with the mischief of the remark, and it is not to be presumed that the final explanation of the counsel, uttered by way of apology, deprived the distinct ruling of the court of its effect, especially as the court below, which witnessed
The judgment will be affirmed.