102 Mo. App. 124 | Mo. Ct. App. | 1903
This is an action instituted by plaintiff, the tenant, against defendant, his landlord, for damages claimed to have been sustained by the breach of a parol contract for the renting of pasture lands.
The answer of defendant consisted of a general denial of each count of the petition.
1. The testimony tended to establish that early in the month of July, 1900, plaintiff and defendant entered into negotiations for the tenancy of the pasture, and together they visited and inspected the pasture, fencing and water gap, and the verbal agreement for the tenancy of the pasture lands for the season of 1900 ensued, the fencing and water gap were repaired by the defendant, the rental paid and possession taken by plaintiff by turning in about one hundred head of cat-
The proper measure of damages recoverable by plaintiff was such injury as naturally flowed from the breach of the contract and was restricted to such loss as was the direct, immediate, proximate and unavoidable consequence of the impaired condition of the fencing. The case of Wisdom v. Newberry, 30 Mo. App. 241, presented a state of facts analogous to the condition disclosed herein and it is held therein that the injury caused by escaping cattle to the neighbor’s corn was not a proper element of damages. The case of Turner v. Gibbs, 50 Mo. 556, as well as the earlier decision of Fisher v. Goebel, 40 Mo. 475, are authorities to the same effect. In Miller v. Railway, 90 Mo. 389, where fire, charged to have been negligently permitted to escape from defendant’s locomotive, communicated to inflammable materials accumulated on its right of way and thence to plaintiff’s fencing, which was destroyed, and in consequence plaintiff’s crops were injured by intruding stock ranging near his lands, the railway was held liable for such damages, the court declaring; “The chief point of objection, however, which the defendant takes, is to the doctrine that the company is responsible for the destruction of the crop by cattle, etc. It was in evidence that there was a good stock range around plaintiff’s field, and that many horses, cattle and hogs came into the field after the fence was burned, and, in spite of all efforts to keep them out, destroyed the crop
2. The plaintiff charged in the count of the complaint upon which the trial was had, that defendant had knowledge of the purposes for which plaintiff rented the land and that the contract of tenancy embraced the agreement by defendant to maintain the fences in such condition as to be sufficient to turn stock. The plaintiff testified to this version of the compact but the defendant controverted such understanding. If the claim of plaintiff was predicated on the mere agreement to repair by defendant, the contention of his counsel that he was entitled to notice to repair and a reasonable time in which to comply with the obligation would be entitled to consideration, but the plaintiff in effect charged in his petition and testified, that defendant warranted the security of the fence while plaintiff’s cattle were upon the pasture and the jury under the instructions of the court so found by their verdict. The instructions asked by the defendant and refused were defective in not responding to the issues joined by failing to submit to,
The case was fairly presented to the'jury, and the judgment is affirmed.