GOODE, J.
(after stating the facts). — 1. (a). Though the record in this case is long and numerous facts are essential to a right understanding of it, the [676]*676points of law raised on the appeal are simple. Both sides proceeded on the theory that, even though the lease contract provided defendants might pay one of the notes given for each year’s rent in labor and making improvements on the farm, or in cash at their option, nevertheless all the notes were payable in cash; hence both of those declared on and which had been given for the rent for the year 1902, were payable in cash; and as it Avas only contended one of them had been thus paid, to-wit, the one declared on in the first count, plaintiff was entitled to judgment on the other. Conceding this view, defendants contended if plaintiff prevented compliance with the stipulation in the lease permitting them to discharge one-half the rept for each year in labor, they might recover damages from him in an action on the lease for his breach; and as it had turned out plaintiff first commenced an action on the notes, defendants contended they were entitled to counterclaim for any damages suffered in consequence of plaintiff’s preventing them from discharging one of the notes in work. The view that defendants were bound in any event to discharge both notes by a money payment was adopted likely because the notes contain promises to pay in money, and the right to pay partly in work is derived from the prior contract of lease, and not from the notes themselves or an instrument contemporaneous AAdth them. We have no reason to pronounce upon the soundness of this theory, inasmuch as the parties coincided in putting it forward as the one to be followed on the trial of the case. If the note, or some instrument executed at the same time (at any rate, if they both referred to each other) had provided for payment in work, then a demand for performance by plaintiff would have been essential to his recovery on such note. [Weil v. Tyler, 36 Mo. 369.] And we do not say it would not have been a good defense to the present action, wherein both parties agree one note was payable in work, that performance was not demanded, or was prevented by [677]*677plaintiff. We will deal with, the error assigned upon this branch of the case, which is that the third count of the answer, wherein damages are demanded on account of plaintiff’s refusal to comply with the lease by designating work for defendants to do and permitting them to do it, states no case for damages. Substantial justice was done, and no reversible error occurred, by allowing a recovery of damages, in view of the hypothesis- on which both sides tried the case, to-wit, that defendants must pay both notes in money. As that hypothesis was accepted, the result was bound to be a judgment for plaintiff for the amount of one of the notes, to-wit, the one declared on in the second count, which there was no contention had been paid. But if this note remained unsatisfied because plaintiff had breached his contract of lease, as the evidence tended strongly to prove, then defendants were damaged by the breach and ought to be compensated. We know of no rule of law which would justify plaintiff in refusing to allow them to discharge one-half the' rent of a year in work, and still hold them for the full rent. Both these notes were given pursuant to the lease agreement, not in addition to or in variation of it, and it provided how they should be paid; provided, too, that plaintiff should dictate the particular service defendants should render on the farm to pay one of the notes. This being true, it was not within his right to defeat the contract by refusing to designate work; and in so doing he violated the agreement.
(b). It is urged no proof was adduced to show how much defendants were damaged by plaintiff’s refusal to allow them to satisfy part of their rent by work, as the value of the work they would have done was not proved, nor was it proved what similar work would have been worth if done for other parties. There was a conflict between plaintiff and defendants as to who was to blame, plaintiff saying he tried to get them to do work as agreed, they saying they offered to do it [678]*678and he would not let them. What the evidence is uniform about is, that defendants had men hired who were ready and able to work, as were defendants themselves, but they could obtain none that year from other persons and had none of their own. Hence the measure of their damages due to plaintiff’s breach could only have been the rent they were to pay in work; that is, the amount of one of the notes. This was what their lost time would have brought them if plaintiff had let them comply with their contract. The verdict on this part of the case was, to say the least, not unjust to plaintiff; for it allowed him $332.50, the principal of the note; $88.01 for compound interest and $50 for an attorney’s fee; whereas it allowed defendants only $332.50, or the amount of the principal, as damages for the breach.
(c). Another contention made in this connection is that as Charles Hale, one of the lessees, had moved off the farm in 1901, he was not there to comply with his contract. But he testified he was ready and willing to help his father do the work in 1902. Little is said in the record about the removal of Charles Hale in 1901. He and his father had rented another farm jointly as they had rented the one in question, and were cultivating both as partners. Though he had moved onto the other farm, the lease with plaintiff did not provide against his doing so, there was no proof he had repudiated his contract with plaintiff, and for aught that appears both he and his father were complying and ready to comply in all respects with their obligations as lessees. Plaintiff himself raised no question about it, but accepted his rent and treated the lease as still in force.
2. (a) It is insisted the court erred in submitting to the jury the counterclaim set up for the alleged fraudulent obtension of possession of the farm by plaintiff while defendants’ term had yet two years to run. No reason is advanced, nor can we perceive any reason, why defendants were not entitled to damages [679]*679for this wrong, if it was practiced. Their written lease accorded them a term of five years and, according to plaintiff’s testimony, said term had one year to rnn when they surrendered possession; whereas, according to the lease itself and the testimony of defendants, it had two years to run. Plaintiff had no right to require possession of the premises during the term, except in case of a sale of the property, in which contingency defendants were hound to surrender possession to him after demand. If the sale was made between December and March, he was to pay them two hundred dollars for relinquishing possession, and if it was made between March and December, they were to surrender possession without payment. On November 29th, or two days before he would, be bound to pay two hundred dollars for possession, he notified them he had sold the farm and demanded possession under the contract, by February 28th, following. In point of fact he had not sold the farm, as the reply admits; and on the evidence before us this conduct was tortious, and if defendants were damaged by the tort, they were entitled to recover compensation. There was testimony tending, to prove their term was worth more than they were paying for it, and this matter was well submitted by the court in the instructions.
(b).
Free access — add to your briefcase to read the full text and ask questions with AI
GOODE, J.
(after stating the facts). — 1. (a). Though the record in this case is long and numerous facts are essential to a right understanding of it, the [676]*676points of law raised on the appeal are simple. Both sides proceeded on the theory that, even though the lease contract provided defendants might pay one of the notes given for each year’s rent in labor and making improvements on the farm, or in cash at their option, nevertheless all the notes were payable in cash; hence both of those declared on and which had been given for the rent for the year 1902, were payable in cash; and as it Avas only contended one of them had been thus paid, to-wit, the one declared on in the first count, plaintiff was entitled to judgment on the other. Conceding this view, defendants contended if plaintiff prevented compliance with the stipulation in the lease permitting them to discharge one-half the rept for each year in labor, they might recover damages from him in an action on the lease for his breach; and as it had turned out plaintiff first commenced an action on the notes, defendants contended they were entitled to counterclaim for any damages suffered in consequence of plaintiff’s preventing them from discharging one of the notes in work. The view that defendants were bound in any event to discharge both notes by a money payment was adopted likely because the notes contain promises to pay in money, and the right to pay partly in work is derived from the prior contract of lease, and not from the notes themselves or an instrument contemporaneous AAdth them. We have no reason to pronounce upon the soundness of this theory, inasmuch as the parties coincided in putting it forward as the one to be followed on the trial of the case. If the note, or some instrument executed at the same time (at any rate, if they both referred to each other) had provided for payment in work, then a demand for performance by plaintiff would have been essential to his recovery on such note. [Weil v. Tyler, 36 Mo. 369.] And we do not say it would not have been a good defense to the present action, wherein both parties agree one note was payable in work, that performance was not demanded, or was prevented by [677]*677plaintiff. We will deal with, the error assigned upon this branch of the case, which is that the third count of the answer, wherein damages are demanded on account of plaintiff’s refusal to comply with the lease by designating work for defendants to do and permitting them to do it, states no case for damages. Substantial justice was done, and no reversible error occurred, by allowing a recovery of damages, in view of the hypothesis- on which both sides tried the case, to-wit, that defendants must pay both notes in money. As that hypothesis was accepted, the result was bound to be a judgment for plaintiff for the amount of one of the notes, to-wit, the one declared on in the second count, which there was no contention had been paid. But if this note remained unsatisfied because plaintiff had breached his contract of lease, as the evidence tended strongly to prove, then defendants were damaged by the breach and ought to be compensated. We know of no rule of law which would justify plaintiff in refusing to allow them to discharge one-half the' rent of a year in work, and still hold them for the full rent. Both these notes were given pursuant to the lease agreement, not in addition to or in variation of it, and it provided how they should be paid; provided, too, that plaintiff should dictate the particular service defendants should render on the farm to pay one of the notes. This being true, it was not within his right to defeat the contract by refusing to designate work; and in so doing he violated the agreement.
(b). It is urged no proof was adduced to show how much defendants were damaged by plaintiff’s refusal to allow them to satisfy part of their rent by work, as the value of the work they would have done was not proved, nor was it proved what similar work would have been worth if done for other parties. There was a conflict between plaintiff and defendants as to who was to blame, plaintiff saying he tried to get them to do work as agreed, they saying they offered to do it [678]*678and he would not let them. What the evidence is uniform about is, that defendants had men hired who were ready and able to work, as were defendants themselves, but they could obtain none that year from other persons and had none of their own. Hence the measure of their damages due to plaintiff’s breach could only have been the rent they were to pay in work; that is, the amount of one of the notes. This was what their lost time would have brought them if plaintiff had let them comply with their contract. The verdict on this part of the case was, to say the least, not unjust to plaintiff; for it allowed him $332.50, the principal of the note; $88.01 for compound interest and $50 for an attorney’s fee; whereas it allowed defendants only $332.50, or the amount of the principal, as damages for the breach.
(c). Another contention made in this connection is that as Charles Hale, one of the lessees, had moved off the farm in 1901, he was not there to comply with his contract. But he testified he was ready and willing to help his father do the work in 1902. Little is said in the record about the removal of Charles Hale in 1901. He and his father had rented another farm jointly as they had rented the one in question, and were cultivating both as partners. Though he had moved onto the other farm, the lease with plaintiff did not provide against his doing so, there was no proof he had repudiated his contract with plaintiff, and for aught that appears both he and his father were complying and ready to comply in all respects with their obligations as lessees. Plaintiff himself raised no question about it, but accepted his rent and treated the lease as still in force.
2. (a) It is insisted the court erred in submitting to the jury the counterclaim set up for the alleged fraudulent obtension of possession of the farm by plaintiff while defendants’ term had yet two years to run. No reason is advanced, nor can we perceive any reason, why defendants were not entitled to damages [679]*679for this wrong, if it was practiced. Their written lease accorded them a term of five years and, according to plaintiff’s testimony, said term had one year to rnn when they surrendered possession; whereas, according to the lease itself and the testimony of defendants, it had two years to run. Plaintiff had no right to require possession of the premises during the term, except in case of a sale of the property, in which contingency defendants were hound to surrender possession to him after demand. If the sale was made between December and March, he was to pay them two hundred dollars for relinquishing possession, and if it was made between March and December, they were to surrender possession without payment. On November 29th, or two days before he would, be bound to pay two hundred dollars for possession, he notified them he had sold the farm and demanded possession under the contract, by February 28th, following. In point of fact he had not sold the farm, as the reply admits; and on the evidence before us this conduct was tortious, and if defendants were damaged by the tort, they were entitled to recover compensation. There was testimony tending, to prove their term was worth more than they were paying for it, and this matter was well submitted by the court in the instructions.
(b). In connection with the counterclaim for damages for the fraudulent dispossession of defendants, plaintiff insists no one was dispossessed but George W. Hale, as Charles Hale had already moved away. What we have said supra covers this matter. It is true Charles Hale was not residing on the farm at the time, but there is nothing to show he was not still in possession as lessee. His own testimony goes to prove he was as do the notes in suit; for he executed them with his father after he had moved.
3. A point is made against the verdict because there was no finding on the second count of the answer. The so-called second count of the answer was simply a [680]*680plea that one of the notes had been paid, and was covered by the finding in favor of defendants on the first count of the petition. The second count of the answer was not, in any true sense, a count which required a separate finding.
4. Error is assigned because the court did not pass on the averment in the reply of mistake in the written lease and prayer that it be reformed, before submitting other issues to the jury. Suffice to say as to this point that the court was not requested to do this, but instead plaintiff himself asked an instruction submitting the issue of mistake to the jury.
5. The admission of the testimony of Mrs. Hale is challenged. She was the wife of defendant George W. Hale, and there was nothing to show she had been appointed his agent in the transaction about which she testified. The sum of her testimony was that plaintiff turned over to her an envelope telling her to hand it to her husband as there was a note in it for him. If she was an incompetent witness under the statute, the admission of her testimony was harmless. The only thing she stated which her husband did not testify to, was that plaintiff told her the envelope contained a note for her husband and to hand it to him. There was no controversy about this incident having occurred, and that the envelope passed from her hands into her husband’s with only one note in it, was otherwise proved. Her testimony regarding plaintiff’s statement about the contents of the envelope and what she should do with it, while probably incompetent, could have had no influence on the jury prejudicial .to plaintiff and ought not to work a reversal of the judgment.
6. Errors are assigned in general terms because of the rulings on requests for instruction. It is said the court wrongly granted those asked by defendants and wrongly refused certain of those asked by plaintiff. We are not inclined to consider the rulings in detail on those complaints, which do not go into particulars [681]*681or say wherein the instructions are erroneous. The main principles of law applicable to the case and announced in the charges have been discussed and held to be correct.
The judgment is affirmed.
All concur.