Nearns v. Harbert

Scott, Judge, delivered the opinion of the court. All the instructions asked by the defendant were given by the court. There was nothing objectionable in the instructions asked by the plaintiff and given by the court. The measure of damages stated in them for the violation of the contract mentioned in the petition was the correct one. In the case of Pond v. Wyman, 15 Mo. 183, the rule is laid down that the refusal of the defendant to permit the plaintiff to perform his contract is equivalent to a performance' for the purpose of maintaining an action upon the contract, and the contract price of the services will be the measure of the recovery of the plaintiff unless the defendant by evidence shows that the damages actually sustained are less than the [355] price agreed upon. So, on the other band, if one is employed by the year at fixed wages, he can not recover any thing for his services if he quits without cause before the expiration of the year. (Schnerr v. Lemp, 19 Mo. 40.) The defendant offered no evidence showing that the plaintiff was entitled to less damages than the measure prima facie fixed by law. When there is .evidence in favor of and against the existence of a fact in issue, the circuit court is the proper tribunal to determine whether the verdict of the jury should stand or not. When that court, which has heard the evidence and seen the demeanor of the witnesses whilst testifying, refuses to disturb the verdict, there is no principle on which this court can grant a new trial on the ground that such verdict is against the weight of evidence. This is now well settled. Judge Ryland concurring, the judgment will be affirmed; Judge Leonard absent.