Pence v. Gabbert

Plaintiff sued defendant for abreach of the covenants of warranty in a certain deed to real estate in Platte county. Plaintiff had judgment rendered by the court as his conclusion on an agreed statement of facts submitted by the parties, for something more than $1,600. The defendant appealed to this court and we held that plaintiff was not entitled to more than nominal damages, and reversed and remanded the cause. See case in 63 Mo. App. 302.

When the cause was returned to the circuit court, plaintiff dismissed the case. Defendant then moved to reinstate the ease, and his motion being overruled by the court, he has appealed to this court. The position taken by the defendant is that the circuit court should *496render judgment under the agreed statement of facts for nominal damages. That the agreed statement of facts was a special verdict on which the court must declare the law, which, in this case, would be nominal damages. Ordinarily, an agreed statement is looked upon as a special verdict and the legal results are pronounced upon it as would be in case the same facts had been found by a special verdict. But we are not awape of any authority for holding that under all circumstances a plaintiff is compellable to submit his cause a second time upon an agreed statement of facts. In this case it appears from the agreed statement upon which the cause was originally submitted, that the plaintiff had omitted to do an act, which may yet be done, and which is a condition precedent to his right to recover substantial damages. We know of no reason or authority prohibiting a plaintiff from abandoning by dismissal a .case which, on the agreed facts, he has prematurely instituted. He was only entitled to recover nominal damages on the statement of facts as they existed, but it ought not to be said that he shall be forced to take such damage. He may forego 'his right and abandon his case if he so elects. The judgment is affirmed.