129 Mo. App. 347 | Mo. Ct. App. | 1908
This plaintiff’s petition contained two causes of action, but we are only concerned with one.
Before taking up this assignment we will notice the minor contention that plaintiff lost nothing by the sale of the hogs at Kansas City, as the evidence goes to show that not he, but the commission company which had contracted for the sale of them stood the loss; that is, lost the commission which would have been earned. It was shown the prospective buyer agreed not to claim damages because of the non-delivery of the hogs, but how this proves that, not plaintiff but the commission company, sustained the loss consequent on defendant’s failure to perform the contract to deliver them to a connecting carrier to be hauled to destination, we are unable to discern. Plaintiff was damaged by the breach of the contract unless he realized as much by the sale in Kansas City as he would have realized by the expected sale in St. Joseph. He might not be permitted to recover this amount of loss on account of his having given no notice to defendant that the hogs were shipped pursuant to a contract of sale; a question we will discuss. Though plaintiff may 'not be able to recover his loss or his recovery may be restricted by the facts, it is certain he sustained a loss.
But the chief contention of counsel for defendant is that, as there was no evidence to show plaintiff notified defendant at the time of shipment the hogs were being sent forward to carry out a contract for the sale of them, plaintiff was not entitled to recover the difference between the price realized in Kansas City and what he would have obtained had the contract made by his agent, the commission company in St. Joseph, not been frustrated by defendant unloading the hogs at the former city. In other words, it is insisted this loss was in the nature of special damages and was not reasonably and naturally contemplated by plaintiff and
The judgment is affirmed.