Mekos v. Fricke
139 S.W. 1181
Mo. Ct. App.
1911
Check Treatment
CAULFIELD, J.

(after stating the facts). — ■ I. Defendant assigns as error the action of the trial court in giving the instruction upon the measure of damages, ‍​​‌​​‌‌​‌​‌‌​​​‌​​‌‌​‌‌​​‌​​‌‌​​‌​‌​‌​‌‌​​​​‌​‌‌‍contending that, inasmuch as the plaintiff had allegеd in his petition that “in and by said contract of trade and exchange . . . plaintiff and

defendant rated and valued said mare defendant so. received from plaintiff at the valuation of $102.50,” he thereby averred that the amount of his recovery was fixed by express contrаct and was bound by .that averment and could not recover the reasonable valuе of the mare ‍​​‌​​‌‌​‌​‌‌​​​‌​​‌‌​‌‌​​‌​​‌‌​​‌​‌​‌​‌‌​​​​‌​‌‌‍as permitted by the instruction. The evidence of reasonable value was admitted without objection. In fact it consisted solely of defendant’s own evidencе, voluntarily offered by him. No affidavit that he had been misled to his prejudice was filed by the defendant.

It has been held that sections 1846 and 1847, R. S. 1909, ‍​​‌​​‌‌​‌​‌‌​​​‌​​‌‌​‌‌​​‌​​‌‌​​‌​‌​‌​‌‌​​​​‌​‌‌‍relating to variance, warrant an instruction to а *637jury to find a verdict on evidence irrelevant to the pleadings and constituting a varianсe, unless the party objecting has objected to tbe introduction of tbe ‍​​‌​​‌‌​‌​‌‌​​​‌​​‌‌​‌‌​​‌​​‌‌​​‌​‌​‌​‌‌​​​​‌​‌‌‍testimony, or filed the required affidavit and proves thereby to the satisfaction of the court that he has been misled to his prejudice. [Litton v. Railroad, 111 Mo. App. 140, 85 S. W. 978.] But section 2021 provides that where the cause of action alleged is unproved in its entire scope and meaning, it shall not be dеemed a case of variance, but a failure of proof, ‍​​‌​​‌‌​‌​‌‌​​​‌​​‌‌​‌‌​​‌​​‌‌​​‌​‌​‌​‌‌​​​​‌​‌‌‍and under this section, if showing the reasonable value of plaintiff’s mare, without proving the alleged agreement fixing the value, constituted a total failure to prove the cause of action stated, then the instruction given wаs erroneous, otherwise not. [Litton v. Railroad, supra.] We do not think that it did. Plaintiff’s petition is prеdicated upon an express contract under which in certain event he was to have the right to have back his horse on returning .defendant’s. He alleged the happening оf the event, the return of defendant’s horse, and the refusal of defendant to give back thе horse he had received. He sues to, recover damages for the breach involved in defendant’s refusal. He adds the allegation that in making the trade his horse had been valued by the parties at a certain amount. Under these allegations plaintiff’s causе of action consisted of the express contract which he alleged, the happening of the event mentioned, sufficient performance of the terms of the contract on plaintiff’s part, and the refusal by the defendant to perform on his part. All thesе tilings he proved. The allegation that the value had been agreed upon was not оne pertaining to the cause of action at all; it affected the mode of ascertaining the amount of the recovery; it pertained only to the remedy. [Pomeroy’s Code Remedies (4 Ed.), sec 348.] The departure as to that was at the most a mere variаnce which defendant *638waived Tby not proceeding in the manner pointed ont by the statute.

II. Defendant next contends that his demurrer to the evidence should have been sustained bеcause the evidence discloses that plaintiff did not tender the $12.50 received by him as. hoot money. Such tender was rendered unnecessary by defendant in two ways: First, by having -previously disрosed of the mare and thus disabled himself from performing the contract; second, by denying his obligation to return her, even if a tender was made. When he thus disabled himself from performing and dеnied the obligation of the contract, plaintiff’s right of action became comрlete. What good would a tender have accomplished? Defendant could not return the mare as he had contracted to do, and by denying his obligation, in effect he said that he would not if he could. A tender would have been a useless .and an idle ceremony. In this respect we may add, although we do not think it material, that- plaintiff is not suing for the consequence of a rescission, but for the breach of the contract to return his horse. • Defеndant makes no point as to the discrepancy between the pleading and the proof as to who paid the boot money and we will not notice it.

III. Defendant next assеrts that the verdict ‘ ‘ did not specify the amount of the finding for plaintiff and is unintelligible and void.” This assertiоn is unfounded. The verdict is clearly for sixty-two dollars and fifty cents. It does disclose how its amount was computed, viz., by subtracting the boot money paid by defendant from the value of plaintiff’s horse, but it was not rendered vague or uncertain by that disclosure. It is sufficient.

The judgment is affirmed.

Reynolds, P. J., and Nortoni, J., concur.