182 Mo. App. 196 | Mo. Ct. App. | 1914
OPINION.
It is elementary that a plaintiff cannot sue on one cause of action and recover on another. One pleading an express contract will not be permitted to recover on one implied. [Canaday v. United Rys. Co., 134 Mo. App. 282, 114 S. W. 88; Michael v. Kennedy, 166 Mo. App. 462, 466, 148 S. W. 983; Walker v. Bohannon, 243 Mo. l. c. 137, 147 S. W. 1024.
The petition standing alone, by the most liberal construction, might be construed as stating a cause of action for money had and received and the allegations as to the contract might be treated as inducement or as surplusage. [See Crigler v. Duncan,. 121 Mo. 1. c. 291, 99 S. W. 61; Stuyvaert v. Arnold, 122 Mo. App. 1. c. 426, 427, 99 S. W. 529; St. Louis Sanitary Co. v. Reed (Mo. App.), 161 S. W. l. c. 317; Richardson v. Drug Co., 92 Mo. App. l. c. 521.] However, the plaintiffs in their reply preclude us from giving their petition and their theory of the case that they can recover on the construction contended for, because in the reply they plead that the contract has not “ceased and determined” and that defendant is estopped from pleading that it had “ceased and determined.” The pleadings and all the evidence introduced by both sides treat the cause of action as one for breach of an express contract and deal with the case on the theory that damages are to be recovered, if at all, for such breach. The plaintiffs manifestly sought to recover a judgment on this theory and it was this theory that defendant resisted. The facts of the case may uphold a cause of action in indebitatus assumpsit, tut the theory on which the trial we are reviewing proceeded was that there had been a breach of an express contract for which plaintiffs sought damages, and it was unfair to the defendant, with the record in the condition it was, for the court to peremptorily instruct the jury to find
On examination of the contract hereinbefore set out it will be seen that it is an option contract and purely unilateral, the land owner obligating himself to convey on certain conditions, the proposed purchasers being under no obligation whatever to carry through the contract, and they had a perfect right to abandon it any time without incurring any liability. This is clearly shown by the last clause which is — “and no liability shall attach by this contract to either the first or second party.” This disposes of defendant’s counterclaim in which he attempted to recover damages for the breach of the contract. His rights are limited to the retention of any sums paid under the contract and nothing more, and his answer should embody this only. The second instruction given for plaintiffs is along this line and properly declared the law except as to the amount defendant would be entitled to retain, which should have been $1020- instead of $500 unless the $520 was -paid by the defendant as his sub scription to a railroad bonus.
In the case of Davis v. Barada-Ghio Real Estate Co., 115 Mo. App. 327, 338, 339, 92 S. W. 113, the court holds that in order for plaintiff to recover in this sort of action — “It was necessary to show further that Stephenson was ready and willing to perform the contract on his part and offered to do so.” It is held in that case that it rests upon the party suing and alleging a breach of the contract to prove as a condition precedent to recovery that he offered to comply with his part of the contract. “In a case like this” said the court in the case last cited, “the law requires the party seeking relief, whether vendor or vendee, to show he did his duty.” That case also holds that where land was mortgaged, since the owner did not therefore have a clear title, the proposed purchaser (the plaintiff) had a right to demand that the mortgage be paid off before he paid over the purchase price, and that it was not a sufficient answer for the owner to say that he intended to lift the mortgage with the purchase money. Under those circumstances, the plaintiff (the proposed purchaser) in order to recover for a’ breach of the contract must show that he actually tendered the purchase price' or offered to pay or that there was a waiver.
The case of Crews v. Garneau, 14 Mo. App. 505, holds that earnest money cannot be recovered by one refusing to perform his part of the contract. To the same effect is the opinion in the case of Webb & Kinne v. Steiner, 113 Mo. App. 482, 48-9, 87 S. W. 618, in which many cases are cited as declaring this doctrine. The same rule is recognized in Norris v. Letchworth, 167 Mo. App. 553, 152 S. W. 421, where the court said (l. c. 557): "The rule is well settled and springs from the most elemental principles of justice that a party to a contract, himself at fault in its performance, cannot maintain an action for its rescission. To hold otherwise would be to allow a wrongdoer to take advantage of his own wrong. This rule has been recognized and applied in this State in a number of cases. [Authorities cited.] But it has no application to cases such as the present where the vendor having elected to rescind the contract on account of the default of the vendee, the latter, acquiescing in that action, sues to recover that portion of his performance of the contract in excess of the damages actually sustained by the vendor on account of his breach.” This principle is emphasized by Ellison, J., in his concurring opinion in that ease.
¥e are of the opinion that if plaintiffs can make a case showing that they were ready, willing and able, and offered to perform their part of the contract and that defendant refused to carry out his part of the contract, or, although plaintiffs did not fully perform their part of the contract or offer to fully perform it, and the defendant treated such non-performance as a rescission, plaintiffs would then have a cause of action for money had and received and defendant could recover for any damage suffered by him on account of the plaintiffs ’ default. If, on the other hand, it is shown that the defendant was at all times ready, willing and able to perform his part of the contract and to convey, notwithstanding plaintiffs ’ default in making payments at stipulated times, then plaintiffs cannot recover either for breach of the contract or for money had and received. The case of Norris v. Letchworth, 140 Mo. App. 19, 124 S. W. 559, is an authority for permitting the plaintiffs to so amend their petition as to make it clearly state a cause of action as for money had and received. [See, also, Norris v. Letchworth, 167 Mo. App. 553, 152 S. W. 421; Clifford Banking Co. v. Donovan Com. Co., 195 Mo. l. c. 288, 289, 94 S. W. 527; Corrigan & Waters v. Brady, 38 Mo. App. 649.
The following is an expression only of the views of the writer of this opinion: When a contract is entered into, a party thereto has under the law two courses, one, to perform, the other, to breach the contract and answer in damages to the other party. That which gives stability to any civil contract is. the preference of the parties thereto to perform rather than to answer in damages under the law. The courts refuse to permit a party to a contract to be penalized for a breach, and this, even though the contract by special
For the reasons stated in the opinion in which we all agree as to the state of the law, the judgment is reversed and the cause remanded.