Fulkerson v. Eads

Ellison, J.

Plaintiff leased to defendant a tract of land for farming purposes; a portion thereof was, by the terms of the lease, to be put in wheat, and it was therein stipulated that “ the remaining sixty acres to be put in wheat, the ground to be broke in the month of August, 1882, and the wheat sowed by the twentieth day of September, 1882.”

Defendant did not break the ground nor sow the wheat as he stipulated in his written contract, and plaintiff brings this action for damages, assigning the foregoing failure, among others, as the breach.

There was evidence in the cause tending to support plaintiff’s case and that he was materially damaged by defendant’s failure to comply with portions of his contract as set forth in the lease. There was, also, evidence on the part of defendant tending to support the defence he set up in his answer, viz. : that he plowed the land and sowed the wheat as soon after the time mentioned as possible. That he was damaged by plaintiff pasturing the wheat and permitting others to do so, etc. The verdict and judgment was for defendant. Plaintiff claimed the right to nominal damages, at least, for the breach of the contract to plow and sow within the time stipulated. Defendant denied the right, and in this view the court framed the instructions.

It is a principle that for the violation of every legal right, nominal damages, at least, will be allowed. And the failure to perform a duty or contract is a legal wrong, independent of actual damage done to the party for whose benefit the performance of such duty or contract is due. 2 Sutherland on Damages, 11, 13. “The damages which the law infers from the infraction of a legal right are absolute, they cannot be controverted; they are the necessary consequent. The act complained of may produce no actual injury; it may, in fact, be beneficial, by adding to the value of the property, or by averting a loss which would otherwise have happened, and still it would be equally true in law and in fact that it was, in itself, injurious, if violative of a legal right. The implied injury is from that circumstance.” Ibid, 10.

By the terms of the contract, in this case, it was plaintiff’s legal right to have his land plowed in August, and his wheat sowed in September; there was no qualification or limitation in the contract; it was absolute.

In speaking of this question, Judge Scott, in Davis *624 v. Smith (15 Mo. 467 ), says: “The distinction between a duty created by law and one created by the party is an-established principle of our law. When the law creates a duty and the party is disabled to perform it, without any default in him, and he has no remedy over, the law will excuse him. But when a party by his own contract, creates a charge or duty upon himself, he is bound tO' make it good, if he may, notwithstanding any accident, by inevitable necessity, because he might have provided against it by his contract.”

Defendant, however, says this doctrine has been modified, if not repudiated, in this state. In this he is in error. The doctrine is not only not modified, but is expressly approved and re-asserted in Harrison v. Ry. Co. ( 74 Mo. 364, 371 ).

The cases of Elliott v. Bobb ( 6 Mo. 324 ), cited by defendant, as well as those involving the identical question to be found in Perkins v. Reed ( 8 Mo. 33 ); Perry v. Beardslee ( 10 Mo. 572 ); (s. c. 14 Mo. 88 ), are not analogous to this, and are distinguished from the principle contended. for by plaintiff. These cases were for the non-return of slaves hired, and went off on questions involving the law of bailment, not hero involved.

The judgment will be reversed and the cause remanded.

All concur.