Lowe v. Sinklear

27 Mo. 308

• Court: Supreme Court of Missouri
• Decided: October 15, 1858
• Status: Published

Opinion

Richardson, Judge,

delivered the opinion of the court.

Assuming that the defendant was substituted in Weaver’s place in the contract for clearing land, the case must be considered in two aspects: first, as to the defendant’s right to recover on his set-off for any portion of the work that was completed before the substitution; and secondly, for the work subsequently performed. As to the work done before the assignment of the contract, the defendant seeks to re cover as the representative of Weaver, and for that much he can not of course recover, unless he makes a case that would authorize Weaver to maintain an action if he were suing. If Weaver failed to perform the work according to the stipulations.of his agreement, he could not recover in an action on the special contract; but if services were rendered by him which were of value to the plaintiff and were accepted by him, he would be liable to pay the actual value of the work performed, not exceeding the contract price, after deducting for any damage which had resulted from a breach of the contract. (Lee v. Ashbrook, 14 Mo. 378; Downey v. Burke, 23 Mo. 228.) It has however been said that this doctrine does not apply to the case of a servant hiring himself for a certain period, as for an entire year, at a fixed sum for the year.

From the time of the agreement between the parties that introduced the defendant, the contract became one between the plaintiff and defendant, and, being executed for personal services and not for necessaries, the defendant, if he was a minor, had the right to avoid the special agreement and to recover a reasonable compensation for the work which he did after allowing for any injury the plaintiff sustained by the avoiding of the contract. (Chitty on Cont. 579, note; Medbury v. Watraus, 7 Hill, 110; Moses v. Stevens, 2 Pick. 332.) The case of McCoy v. Huffman, 8 Cow. 84—on the authority of which the case of Weeks v. Leighton, 5 N. H. 343, and Owen v. Black, 4 Black. 338, were decided — is expressly overruled in 7 Hill, 110.

The instruction'which the court gave was erroneous, and the judgment will be reversed and the cause remanded;

the other judges concurring.