Contracting Co. v. Storage Co. FERD BAUER ENGINEERING & CONTRACTING COMPANY, Appellant, v. ARCTIC ICE & STORAGE COMPANY, Respondent. St. Louis Court of Appeals. Argued and Submitted December 8, 1914. Opinion Filed January 5, 1915. 1. VERDICTS: Inconsistent Finding: Verdict on Claim and Counterclaim. Where suit was brought on a contract for the stipulated price of doing certain work in accordance with its provisions and defendant denied that plaintiff was entitled to recover anything and filed a counterclaim for failure to do the work according to the requirements of the contract and within the time therein provided, a verdict in favor of plaintiff on its claim, and in favor of defendant on its counterclaim for an amount greater than the contract price for doing the work, is so inconsistent that it cannot be permitted to stand, since a verdict for plaintiff must necessarily be founded upon at least substantial compliance with the contract by it, while, on the other hand, defendant's right of recovery on the counterclaim depends upon a finding that plaintiff failed to substantially perform the contract. 2. APPELLATE PRACTICE: Errors Presumptively Prejudicial. The broad presumption is, that errors of the trial court are prejudicial, and it devolves upon the person asserting their harmlessness to show such fact affirmatively, otherwise the presumption will prevail; but this rule does not obtain where it affirmatively appears that the error is so inconsequential as not to have prejudiced the party against whom it was .committed. 3. BUILDING CONTRACTS: Breach: Damages: Minimization: Excessiveness of Recovery. In an action to recover the balance due on the stipulated price of $1300 for erecting a structure in accordance with the provisions of a contract, where defendant set up a counterclaim in which it asked for damages for failure of plaintiff to do the work according to the requirements of the contract and within the time therein provided, held that the evidence did not make it appear that defendant suffered damages to the amount of its recovery on the counterclaim$1478.71; held, further, that defendant did not seek to minimize the damages, as it was required by law to do. 4. DAMAGES: Breach of Contract: Minimization. It is the duty of one injured by the breach of a contract to minimize the damages. Contracting Co. v. Storage Co. Appeal from Audrain Circuit Court.-Hon. James D. Barnett, Judge. REVERSED AND REMANDED. Wilfred Hearn for appellant. (1) The court erred in giving instruction number 4 of its own motion—(a) Because under the pleadings there could not be a recovery in favor of plaintiff on the cause of action set out in count 1 of plaintiff's petition, and at the same time a recovery in favor of defendant on its counterclaim. Johnson v. LaBarge, 46 Mo. App. 433. (b) Plaintiff recovered on a special contract, not on a quantum meruit. A recovery of quantum meruit cannot be had on a count of special contract. Rude v. Mitchell, 97 Mo. 365; Moore v. Gaus & Sons Mfg. Co., 113 Mo. 98; Cole v. Armour, 154 Mo. 336; Davis v. Drew, 132 Mo. App. 503. (2) The court erred in receiving the verdict of the jury and entering the same of record, because the verdict was inconsistent and contradictory. Johnson v. LaBarge, 46 Mo. App. 433. Fry & Rodgers for respondent. (1) In an action on contract it is proper for defendant, if he has been damaged by a breach of the contract but retains and uses the article or thing for which he owes, to set up his damage by way of counterclaim. Boetler v. Roy, 40 Mo. App. 234; Hay v. Short, 49 Mo. 139; Brown v. Weldon, 23 Mo. App. 263; Johnson v. O'Shea, 118 Mo. App. 287; Manufacturing Co. v. Mission, 174 Mo. App. 723; Ritchie v. Hayword, 71 Mo. 560;. State, etc., v. Modrell, 15 Mo. 424; McAdow v. Ross, 53 Mo. 199. (2) The fact that the appellant did not complete the work within the time limited therefor by the contract, nor do all of it ac Contracting Co. v. Storage Co. cording to the contract, does not preclude it from suing on the contract when respondent has accepted and used the tower. But respondent can counterclaim the damages sustained by it by reason of the contractor's failure to comply with the contract. Blakely v. Neil's Lumber Co., 141 N. W. 179; Cummings v. Pence, 27 N. E. 631; Campbell v. Summerville, 114 Mass. 334; 3 Elliott on Contracts, sec. 2112; Railroad v. Clanton, 31 Am. 15; Mears v. Nichols, 89 Am. Dec. 381; Yeamans v. Parker, 63 N. W. 316; Glennon v. Lebanon Mfg. Co., 12 L. R. A. 321; Natural Gas Co. v. Healy, 10 S. E. 56. (3) The whole tendency of modern jurisprudence is to enlarge the scope of set-off or counterclaim and, where possible, settle all disputes in one suit. Nelson v. Troll, 173 Mo. App. 67; Railroad v. Zant Imp. Co., 6 L. R. A. (N. S.) 1058; 34 Cyc. 629, 644, 645, 682. REYNOLDS, P. J.-Plaintiff, appellant here, brought its action against defendant to recover $678.71, claimed to be the balance due for the erection of a cooling tower, for which, upon the erection and completion of the same according to the contract and specifications, defendant was to pay plaintiff $1300. Averring that the tower had been erected and completed according to the contract evidenced by a proposal and specifications set out in the petition, and that defendant had paid $621.29 on account of the contract price, plaintiff demanded judgment for the balance together with interest and costs. After a general denial of all the allegations in the petition, the answer of defendant sets up a counterclaim averring that according to the contract, the tower was to be erected and the work on it completed so that it would operate by April 5, 1911, and that it had not been completed until some time in November, 1911, and alleging various defects in it, defendant claims that it has suffered damage by reason of plaintiff's failure to comply with the terms of the con Contracting Co. v. Storage Co. tract, in the sum of $2040, for which it demands judgment. Replying to this by a general denial of the aver-. ments of this part of the answer, the reply avers that after the erection of the cooling tower in controversy, plaintiff was notified by defendant that the tower was defective and did not operate in accordance with the terms of the contract, and that thereupon plaintiff offered to remedy whatever defects there were in the tower but that defendant had refused to allow plaintiff to make these corrections until about the month of November, 1911. There was a trial before the court and a jury and a verdict in favor of plaintiff on the cause of action set out in its petition in the sum of $678.71, and a verdict in favor of defendant on its counterclaim in the sum of $1478.71. Judgment, by nunc pro tunc entry, correcting the original judgment, was entered in favor of defendant for $800, the difference between the amount awarded plaintiff on its cause of action and that awarded defendant on its counterclaim. Interposing a motion for a new trial and excepting to the action of the court in overruling that motion, plaintiff has duly perfected its appeal to this court. The only errors assigned by counsel for appellant are on the fourth instruction given to the jury by the court of its own motion, to the action of the court in receiving the verdict of the jury and entering it of record, and in overruling defendant's motion for a new trial. That fourth instruction is as follows: "If the jury find in favor of plaintiff on the cause of action set out in count one of plaintiff's petition, and also find in favor of defendant on its counterclaim, the verdict may be written in the following form: "We the jury find in favor of plaintiff on the cause of action set out in count one of plaintiff's peti Contracting Co. v. Storage Co. tion and we assess the amount of plaintiff's recovery on the counterclaim at the sum of (Insert the amount.) 'We further find in favor of defendant on defendant's counterclaim and we assess the amount of defendant's recovery on the counterclaim at the sum of (Insert the amount.)'"' It is argued that this instruction is misleading; that it misled the jury into returning an inconsistent verdict and is contradictory. While the only error assigned is to the giving of this fourth instruction and to the action of the court in receiving the verdict in the form given, we have examined the other instructions given at the instance of plaintiff and defendant. In effect, the jury were instructed that if plaintiff had performed the work under the contract within a reasonable time after entering into the contract, their verdict should be for plaintiff for the contract price, less any sum they found had been paid by defendant. The court further instructed the jury. that if they found from the evidence that after the tower in controversy had been erected, defendant began the use and occupation of it and thereafter discovered defects therein which could have been remedied, and that defendant neither caused the defects to be remedied nor permitted plaintiff to remedy them, but continued the use and occupation of the tower to its damage, defendant would not be entitled to recover on its counterclaim for any damage sustained after the defects were discovered, which damage could have been avoided by the correction of the defects; and if they found that plaintiff had erected the tower within a reasonable time after being employed to do so, and that within a reasonable time after notice of the failure of the tower to conform to the contract, had offered to make it conform thereto, but that defendant would not permit plaintiff to do so until on or about November 15, 1911, and that on that date plaintiff did repair the |