Steinberg v. Gebhardt
41 Mo. 519
Mo.
1867
Check Treatment
Fagg, Judge,

delivered the opinion of the court.

In the former cases adjudicated in this court, it has been held, that in actions upon a contract for services rendered *521where the amount of compensation is fixed by its terms, such sum is prima facie the measure of damages when the defendant refuses to permit a performance on the part of the plaintiff. Such refusal is to be taken as equivalent to a perform? anee for the purpose of maintaining the action—Pond v. Wyman, 15 Mo. 175; Nearns v. Harbert, 25 Mo. 352. If, however, the failure to perform the contract results from the act of the plaintiff, it is always competent to prove such a fact, and leave the jury to say upon the evidence whether any damage was sustained or not. In this case there was some evidence tending to prove a settlement between the parties and a payment in full of all the damages claimed.

It is not the province of this court to weigh the testimony for the purpose of ascertaining whether the jury found too much or too little. In the instructions given, the court very properly told the jury that it was their province to find the amount of damage, if any had been sustained, and that they were not at liberty to go beyond the amount fixed by the contract sued upon. The jury found for the plaintiff in the sum of twenty-five dollars, and we shall not disturb the verdict. The instruction asked on the part of the plaintiff was properly refused.

The other judges concurring;

the judgment will be affirmed.