67 Mo. App. 32 | Mo. Ct. App. | 1896
On the sixth day of April, 1883, the defendant Broome instituted a replevin suit against the plaintiff to recover the possession of two race horses, viz.: a black filly named “Black G-al,” and a sorrel filly known as the “Bass filly.” The defense was that Wright owned an undivided half interest in the horses. The case was tried at the October term of the circuit court of the city of St. Louis, and resulted in a verdict and judgment for Broome. In the present case the entire record in the replevin suit, which included the testimony taken at the trial and the instructions, was read in evidence, from which it appears that in November, 1882, Broome, who was the owner of the horses, delivered them to Wright with the understanding that Wright should care for, train and race them, and to compensate him for this trouble and expense he was to have an undivided half interest in the horses
After the final determination of the replevin suit, to wit, on the sixteenth day of May, 1885, the present .suit was instituted, in which the plaintiff sues for feeding and earing for the horses while they were on the farm, and also for expenses incurred by him in training them prior to their seizure under the writ of replevin. The total amount claimed is $381.25. The defendant denied all liability, and insisted further that, if plaintiff was entitled to any compensation for feeding and training the horses, he should have asserted the claim in the replevin suit, and, haying failed to do so, he is precluded from suing for it in this action. The defendant also set up in his answer a counterclaim for $150, ■attorneys’ fees paid by him for the prosecution of the replevin suit. The cause was submitted to the court without a jury. The facts concerning the replevin suit were established, and evidence was received on both sides as to the reasonable charges for feeding and caring for the horses while at the farm, and the plaintiff also gave evidence of the money paid by him in training the horses after they were brought to the city, which was controverted by the defendant’s evidence.
The defendant insists that his instruction for non-suit ought to have been given for the reason that, if the contract was not signed through the fault of the plaintiff, he can not recover, and likewise he could not recover if the fault was with the defendant, for the plaintiff’s action then would be for damages for a breach of the contract. As to the first proposition the defendant is undoubtedly correct. It is undisputed here, as it was in the replevin suit, that it was agreed that the plaintiff should take the horses, feed, care for and train them, and in lieu of a money compensation therefor he was to receive an interest in the horses. The judgment in the action of replevin conclusively established the further fact that this agreement was not to become operative until it was reduced to writing and signed by the parties, which it is conceded was not done. Therefore it is plain that the plaintiff can not recover, if he refused to sign the contract; for he expressly agreed that he would charge nothing for keeping and training the horses as an individual item, but was to receive his compensation under a contract thereafter to be executed. If he voluntarily and without cause refused to enter into such contract, he will
Concerning the second proposition we think that-counsel is in error. The replevin suit conclusively established that there was no contract; hence the plaintiff could not sue for its breach. But, if the arrangement under which the plaintiff took the horses failed of consummation through the wrongful act of the defendant and through no fault of the plaintiff, then in equity and good conscience the latter ought to receive his reasonable charges and expenses. It was certainly unwise for the plaintiff to take charge of the horses and incur any expense on account of them before the contract was reduced to writing; but, nevertheless, if the defendant refused without just cause to finally consummate-the agreement and the plaintiff was ready and willing to do so according to the oral understanding, he ought to recover to the extent that defendant was benefited by his services, for otherwise the defendant would be-permitted to profit by his own bad faith. • We think that this view is supported by analogous cases. Thus the law holds a defendant liable as upon an implied contract to pay proper compensation, where the plaintiff has rendered his services upon request but there is-a misunderstanding as to the compensation to be paid. Turner v. Webster, 24 Kansas, 38; Tucker v. Preston, 60 Vt. 473; Constable v. Lefever, 21 N. Y. Supp. 38. So, where the contract under which the services are-rendered is void under the statute of frauds and no-action can be maintained thereon, yet a recovery upon a quantum meruit may be had. Cadman v. Markle, 76 Mich. 448; Wonsettler v. Lee, 40 Kansas, 367; Lapham v. Osborne, 18 Pac. Rep. 881.
In further support of the instruction of nonsuit it is insisted by the defendant that the judgment in the
The defendant ■ asked the following instruction, to wit: 1. “The court declares the law to be that, if the plaintiff took the horses, for the care of which he sues, with the understanding that an agreement was thereafter to be made in writing respecting them, whereby in lieu of receiving compensation for keeping them he was to have an interest in them, and that after having
The remaining question pertains to the defendant’s alleged counterclaim. We have found no law supporting it. Some of, the authorities hold that, where the taking is willful or malicious, attorney’s fees may be included in the assessment of plaintiff’s damage in a replevin suit. But the general rule is that such fees are not proper items of damage under any circumstances, and this view has been concurred in by our supreme court. Mix v. Kepner v. 81, Mo. 93; Wells on Replevin, sections 576, 577; Cobbey on Replevin, sections 920, 921. Therefore, we think that the circuit court did right in refusing the defendant’s instruction as to the counterclaim, and in rejecting it altogether.
Eor error in refusing the defendant’s first and second instructions, the judgment of the circuit court will be reversed and the cause remanded.