| Mo. | Oct 15, 1851
delivered the opinion of the- court.
The only question for consideration in this case* is the measure of damages which Pond should recover upon the contract for the superintendance, stated in the petition; as the other items of claim, for drawing plans, specifications, &c., are not disputed before this court.
Pond entered upon the superintendance of the erection of Wyman’s school house, upon a contract, as is alleged, for a specific price, and was prevented from completing the service by Wyman, without fault on his part, although he was ready to perform his contract. The building would have required Pond’s services, as superintendant, for more than a year.
The first instruction given by the court of common pleas, tells the jury that if the contract was made between Wyman and Pond, and that Pond was always ready and willing to perform his part thereof, but that Wyman refused to permit him to do so, without any fault on Pond’s part, then Pond is entitled to recover the contract price, and interest thereon, from the completion of the building, unless the defendant has proved that the plaintiff* did not actually sustain any damages from said breach of contract.
This instruction certainly does not express the views of the law entertained by the judge who gave it; for in other instructions, that appear to have been given of his own motion, he states the facts by which the defendant might reduce the plaintiff’s damages down even to a nominal amount. If this instruction, clearly erroneous in itself, could be regarded as helped by the subsequent instructions, we would not consider it as a proper ground for reviewing the judgment, for it has been declared by this court, that where two instructions, each improper in itself, amounted to a correct statement of the law when taken together, the error in each would be disregarded: Williams vs. Vanmeter, 8 Mo. R. 342. But in that case, it is also stated, that the two instructions were not contradictory. In the present case, the first instruction lays down a rule for assessing the plaintiff’s damages, totally inconsistent with that presented in other instructions, and, as the question before the
It is to be regretted, that the practice so generally prevails, of giving a multitude of instructions to juries, by which the danger of losing the benefit of a just judgment upon the merits, is greatly increased. A judgment will not be reversed for the refusal of instructions, if the instructions given, present to the jury a correct and full statement of the law governing the case.
In examining decided cases, upon the measure of damages recoverable upon contracts like the present, we have had occasion to remark the great plexibility of the law in adjusting the rule to the equity of each case, as it arises, so as almost to leave the case without a rule. It is, apparently, by comparing the instructions given in this case, by the judge on his own motion, with the opinion of Mr. Justice Beardsley, in Costigan vs. Mohawk and Hudson R. R. Co., 2 Denis 609, that that case has been taken by the court of common pleas,' as furnishing the rule for the measure of damages in the present case. Costigan was employed by the rail road company, to superinted the road for a year, at a salary of $1500 for the year, together with the use of a dwelling house, worth $150 per annum. He commenced the services, and after two months had elapsed, he was dismissed, without fault on his part. He gave the company notice of his readiness to complete his contract, but was not allowed to proceed with its performance, and remained wholly unoccupied for the balanee of the year. In the opinion of the court, it is first argued, that the plaintiff was entitled to recover the amount of the salary fixed by the contract, and the impression made by this part of the opinion is, that the amount so fixed, is to be taken as the measure of recovery. As the judge proceeds, however, he allows, that the compensation which the plaintiff might have received for other services rendered to other persons, during the time the contract existed, might be taken into consideration in reducing the damages. He also admits, that offers of similar employment, made to the plaintiff during that time, where the employment urns to be in the same region, might be shown, to reduce the damages, although the plaintiff refused to be so employed.
It appears, sufficiently, from the character of the contract, that the whole time of Costigan would have been employed in performing his duties in superintending the rail road, and the application of the rule for the reduction of the damages, either by the proof of his being engaged in other business during the time, or of offers of similar work, which would have occupied the whole or a portion of the time, would
In cases like the present, the general train of decisions, while it makes the ¡refusal of the defendant to permit the .plaintiff to perform his contract, equivalent to a performance for ¡the purpose of maintaining the action upon .the contract, yet it does not allow At ¡to entitle .the plaintiff to a peremptory recovery of the contract price. It makes the contract price the measure of the plaintiff ’s-recovery, unles the defendant, by evidence, shows that the damage, actually sustained, is less (than the' price agreed upon. This, we regard as a sufficient concession to the ¿person who has violated a contract by which he was bound to pay a certain price to-.another-, for services to be rendered. The plaintiff, who has been .prevented, -by the act of the defendant, ¡from receiving the compensation agreed upon, when he is without fault, is entitled to ask a full indemnity, and the onus-of reducing the recovery, is properly thrown upon the defendant. It is almost impossible to lay down any rule for this ¡redaction., that will be comprehensive enough to embrace all cases, and yet be particular and special enough t© be of any practical utility. To tike extent that the time of the plaintiff, which would be required sfco perforin his contract, has been employed in business, not more laborious, and equally profitable, ifc is evident that he would not be injured by the violation of the contract- Yet, to give him the full benefit of his contract, he must be entitled to thedifference in advantage, ■in easi8®*id profit, between the service he was to perform, and the business substituted for that service, although his whole time may have been employed. If a portion only of the time was so employed, then the same rule will apply to the reduction for such portion, and the contract price will furnish the scale of compensation for the time unemployed. But, if for any of the time unemployed, offers of employment, within the range of his general occupation, and in the same region, were made
It will be seen, that we depart from the rule stated in the opinion of Mr. Justice Beardsley, as the law in New York, and this is done, because we think the rule is not stated with the precision with which rules for the government of juries should be laid down, and because we differ from that court in regard to the effect of some facts which ought to influence the measure of damage. To say that certain offers of employment “might have furnished a ground for reducing the recovery below the stipulated amount” does not, in our judgment, form a sufficiently clear rule for ascertaining the measure of damage. We give force to the offer of employment, when it is within the line of the plaintiffs occupation, without requiring that it shall be similar to that contracted for.
The judgment is reversed and the cause remanded,