57 Mo. App. 431 | Mo. Ct. App. | 1894
— This cause was heretofore before this court. 51 Mo. App. 92. On the first trial plaintiff recovered a judgment for $500, which we reversed
One of the errors now assigned by the plaintiff, who appeals, is that this instruction was improperly given upon the second trial, as there was no substantial evidence of any dispute between the parties. The facts of the case are very fully stated in our former opinion, and need not be reiterated here. It suffices to say, for the purpose of disposing of this first assignment, that there was no substantial difference upon the first and second trial concerning the hypothetical facts on which this instruction is based. This disposes of that assignment, since, according to the uniform law of this state, our first opinion established the law for the guide of the trial court on a subsequent trial. Metropolitan Bank v. Taylor, 62 Mo. 338.
The other error assigned is that the court refused a number of instructions asked by the plaintiff, and gave one for the defendant which told the jury, in substance, that, if the plaintiff agreed to make for the defendant plans for seven houses, which, if constructed according to the plans, were to cost no more than $18,000, the defendant was not bound to pay for plans and specifications for seven houses which would cost $35,000. As there was evidence to support this instruction, and as it states the very obvious proposition of law that one who buys one thing is not thereby bound to pay for another and different thing, the assignment is not tenable.
The plaintiff now complains that his instructions should have been given. They were to the effect that, unless the final settlement was supported by an independent consideration, it was not binding upon the plaintiff, and the jury should find for the plaintiff. The difficulty with the plaintiff’s instructions is, that each of them concludes with a peremptory order to find for the plaintiff, if the jury found the hypothetical facts stated in the instructions in his favor, and ignores the defendant’s evidence which was to the effect that the contract of 1887 was superseded by the contract and compromise of 1888, which, if true, was of itself fatal to plaintiff’s recovery. Deutmann v. Kilpatrick, 46 Mo. App. 624; Perkins v. Headley, 49 Mo. App. 556; Green v. Railroad, 82 Mo. 653; Mitchell v. Henley, 110 Mo. 598; Dunham v. Griswold, 100 N. Y. 224. No rule of 'practice is better settled, than the one which
It results that the judgment must be affirmed. So ordered.