Plaintiff sued to recover damages for the breach by defendant of a contract for the sale and delivery of shares of stock in a telephone corporation. The answer is a general denial. A trial resulted in a verdict for defendant but on motion of plaintiff the court set aside the verdict and granted a new trial on the ground, stated in the order, of error in giving instructions "B" and "C" asked by defendant. Dissatisfied with this action of the court, defendant brought the case here by appeal.
Defendant was the president and manager of the California Telephone Company, a corporation owning and operating a telephone exchange in the city of California. The capital stock of the company was *Page 435 $9000, divided into ninety shares of the par value of $100 each. Defendant owned twenty shares and the remaining stock was held by various persons residing in California. Plaintiff lived in Shelbina and was engaged in the business of buying and selling telephone exchanges. In July, 1910, the parties began negotiations for the purchase by plaintiff of a controlling interest in the stock of the company. The negotiations were conducted chiefly by correspondence and the letters written by plaintiff were not preserved by defendant and as no copies of them were kept by plaintiff their contents were the subject of a sharp dispute at the trial. Plaintiff testified that the proposals he made in them were for the purchase of the stock from defendant while defendant testified that in the purchase of the stock it was understood he was acting as the agent of plaintiff as to all the shares except those owned by him which were to be included in the sale.
It is conceded plaintiff did not offer to pay the full purchase price of the stock at the time of delivery. At first he offered to make a down payment of $2000 and to give defendant his notes for the remainder secured by a chattel mortgage on all of the stock to be purchased. Later he found it would be inconvenient for him to pay more than $1500 on the purchase price and he wrote defendant to that effect and further objected to going into debt so deeply. Under date of July 16, 1910, defendant wrote plaintiff as follows:
"Yours of the 15th inst. recd Contents noted. You say you do not want to go in debt so much. Now if you want the exchange I will make you a proposition that you cannot afford to pass up for any trade. I will retain 2000 instead of $1000. You will have 9000 only invested. As to terms you can pay $1500 down and balance as you want to. Now if you want the chance of your life come at once as I am going to make a deal in a few days. In regard to your farm you can trade it *Page 436 for real estate here I think without any trouble. Let me hear at once."
On August 11, 1910, plaintiff, according to his testimony, mailed an offer to defendant to purchase seventy shares for $8500, to pay down $1500, and to discharge the remainder of the purchase price in deferred payments. Defendant replied by letter but his reply is not in the record and we do not know its contents. Evidently it was favorable to the continuance of the negotiations and evoked a response from plaintiff to the effect that he would go to California to close the deal in person. The record relating to the correspondence preceding plaintiff's visit to California which occurred August 22, 1910, is very unsatisfactory, but we are able to say with certainty that the letters do not evidence a binding contract between the parties. Plaintiff himself testified that there were some "variations" between the terms of sale agreed upon in the letters and those in the contract finally made by the parties at the end of their personal negotiations. One of the conceded changes was an increase of the purchase price of the seventy shares from $8500 to $8554. The contract that was finally entered into was made at California and the terms of that contract are a matter of controversy.
We shall not go into the details of the evidence bearing on this subject. The evidence of plaintiff to the effect that defendant undertook the sale and delivery on the first day of the following month of seventy shares of stock at the agreed price is not only substantial but, as we shall show, must be treated as conclusive. The day after the contract had been made and after plaintiff had returned home, defendant telephoned him that the contract could not be carried out and also wrote him a letter in which defendant said: "Complications have arisen which cannot be adjusted I am returning you papers as per agreement." The papers referred to were plaintiff's check of $1500 for *Page 437 the down payment and notes he had executed for the deferred payments. These papers, together with a chattel mortgage executed by plaintiff to secure the deferred payments and which covered the stock to be transferred had been placed by the parties in the hands of a banker at California with, the understanding that the check, notes and mortgage were to be delivered to defendant on delivery by him to the banker for plaintiff of the seventy shares of stock. These deliveries were to be made on the first day of the following month and the papers were to remain in the banker's hands until that time. But finding that he could not procure the stock necessary to consummate the sale defendant obtained the papers from the banker, destroyed the chattel mortgage and sent the other papers to plaintiff. Plaintiff states that a bill of sale executed by defendant conveying to him the seventy shares of stock was placed in the hands of the banker with the other papers but this statement is denied by defendant. The excuses offered by defendant for procuring these papers from their custodian and destroying at least one of them are too flimsy to merit serious consideration. His conduct was highhanded and inexcusable and as it resulted in the destruction of important documentary evidence, we shall accept as proved the statement of plaintiff that there was a bill of sale among the papers deposited with the banker which, in form and substance, bound defendant, as vendor, to deliver the shares of stock to the banker for plaintiff's benefit. Every presumption is against the despoiler of documentary evidence. "His conduct is attributed to his supposed knowledge that the truth would have operated against him." [1 Greenleaf on Ev., Sec. 37.] It is said by our own Supreme Court in Pomeroy v. Benton, 77 Mo. l. c. 87:
"Numerous instances are given in the books of the like application of the rule, where it is held that spoliation of documentary evidence being proved *Page 438 against a defendant; that thereby he is held to admit the truth of the plaintiff's allegations; and this upon, the ground that the law, in consequence of the fraud practiced, in consequence of the spoliation, will presume that the evidence destroyed would establish the plaintiff's demand to be just."
To permit the despoiler to dispute his adversary's statement of the contents of the destroyed document would be to permit him to profit by his own wrong — to gain the very advantage his lawless act was designed to secure. Applying this rule we must hold that inasmuch as defendant admits the destruction of certain papers having an important bearing on the relation existing between him and plaintiff, we should assume, as a matter of law, that the papers deposited with the banker evidenced a contract of sale in which defendant was the vendor and plaintiff the vendee and disproved the assertion of defendant that he was merely the agent of plaintiff.
With the case in such posture, i. e., with the contract of sale admitted and with the breach of defendant indubitably established, there was only one issue of fact to go to the jury, viz., the quantum of plaintiff's damages. We find in the instructions given at the request of defendant that he was allowed the benefit of the defense of agency. This was prejudicial error for which a new trial should have been granted.
The instructions of defendant which the court concluded were erroneous related to the measure of damages and directed a verdict for defendant unless the jury should find that plaintiff had suffered substantial damages from the breach. Regardless of whether or not he sustained actual damages, plaintiff was entitled to maintain an action for the wrong inflicted upon him. A breach of contract is a wrong, an injury, and the rule is fundamental that for every actionable injury there is an absolute right to damages. If no actual damages are proved the legal implication *Page 439 of damages remains and nominal damages should be allowed. [Fulkerson v. Eads, 19 Mo. App. 1. c. 623; Lampert v. Drug Co.,119 Mo. App. l. c. 693.] The instructions were erroneous and the error was sufficient to warrant the order allowing a new trial.
The point, made by plaintiff, of error in the ruling of the court that the wife of defendant was disqualified from giving testimony relating to certain issues in the case is not well taken. See Fishback v. Harrison, 137 Mo. App. 664, in which will be found an answer to the argument of counsel for plaintiff on this point.
We find no other error in the record. The judgment is affirmed. All concur.
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