Davis v. Tubbs

Citations

• 7 S.D. 488
• 64 N.W. 534
• 1895 S.D. LEXIS 105

Syllabus

<p>1. Where a party to a contract is prevented by the wrongful act of the other party from completing the same, he has the choice of two remedies for obtaining redress: He may treat the contract as rescinded', and recover the value of his services, and for material furnished and money necessarily expended under the contract prior to its termination; or he may bring his action upon the contract for a breach of the same, and recover all he would have been entitled to under the terms of the contract, less the expense of completing the same. But he cannot combine the two causes of action in one; he must elect upon which cause of action he will proceed.</p> <p>' 2. If the action is brought for the value of his services, material furnished, and money expended under the contract before the same was wrong'fully terminated by the defendant, the issue is as to the value of such services, materials furnished, and money expended; and evidence as to what profits the plaintiff could have made by the terms of his contract had he been permitted to complete the same is irrelevant, and its admission constitutes reversible error.</p> <p>3. Where D. entered into a contract with T., by which he agreed to take possession of a ranch and flock of sheep belonging to T., and take all necessary care of and bear all the expense incident to the keeping and feeding the same for the period of one year, and, as compensation therefor, D. was to receive one-half of the wool, one-half the increase, etc. After D. had kept said sheep for about eight months, T. (as it was claimed by D.) wrongfully prevented him from completing his contract. D. thereupon brought suit to recover the value of his services and money expended in herding and keeping said sheep for the term he had charge of them. On the trial, after giving evidence tending to prove the money expended by him, etc!, he was permitted to g-ive evidence tending to prove what profits he could have made if he had been permitted to complete his contra