28 Mo. 310 | Mo. | 1859
delivered the opinion of the court.
If it is conceded that by the contract between the parties Smizer was bound to pay the plaintiff, immediately upon the commencement of the work the sum of one hundred and five dollars, the amount due the plaintiff for services performed in building the mill under a contract with Probeck, yet that sum constituted but a part of the consideration of the contract. The refusal of Smizer to comply with his contract with the plaintiff and Grimm did not give a right to them to sue and recover the price of the work as though it had been actually done. This is not like the case where a servant or agent is employed for a stated period and is afterwards wrongfully turned away. The contractors were entitled to the damages they could show they had sustained by reason of the defendant Smizer’s having prevented the performance of the contract on their part. The one hundred and five dollars was a part of the consideration, and no reason is seen why it should be recovered more than any other portion of it. It can make no difference that the sum was originally due to the plaintiff from another person for work done on the same mill.
If Smizer has violated his contract in preventing the plaintiffs from doing the work they had undertaken, he is liable to an action; but that action could only be brought in the joint names of Rainy and Grimm, the contractors. That provision of the practice act, which allows a party to be made a defendant when he will not join as a plaintiff, has nothing to do with this question. That was a rule of equity practice which was necessarily incorporated into a system whieh abolished all distinction of actions. In adopting it, it was not designed that it should have any operation but in cases where
The judgment will be affirmed;
