Section 4.2 Generally

• Library: Contracts 2016 Supp

A. (§4.2) Generally

Every breach of contract gives the injured party a right to damages against the party in breach, unless the contract is not enforceable against that party or the claim for damages has been suspended
or discharged. Restatement (Second) of Contracts § 346(1) (1981). The resulting claim may be one for damages for total breach or
for partial breach. A judgment awarding a sum of money as damages is the most common judicial remedy for breach of a contract. Id. at § 346(1) cmt. a.

To establish a breach of contract, the plaintiff must show:

the existence of an enforceable contract;

mutual obligations arising under the terms of the contract;

that the defendant failed to perform; and

that the plaintiff was damaged as a result.

Emerson Elec. Co. v. Rogers, 2006 WL 212211 (E.D. Mo. Jan. 27, 2006); Rice v. W. End Motors, Co., 905 S.W.2d 541 (Mo. App. E.D. 1995); Gilomen v. Sw. Mo. Truck Ctr., Inc., 737 S.W.2d 499 (Mo. App. S.D. 1987). Damages are an essential element and must be proved by the plaintiff. Rice, 905 S.W.2d 541. An action for damages may be
by declaration specifically on the contract or on a quasi-contract theory such as “indebitatus assumpsit” or “quantum meruit.” Under the theory of assumpsit, the plaintiff seeks damages based on an implied promise of the defendant to do some act or pay some debt. Black’s Law Dictionary 133–34 (8^th ed. 2004). Under the theory
of quantum meruit, the plaintiff seeks damages for the reasonable value of services rendered in a quasi-contractual relationship. But under any of these, the action for damages proceeds on the theory that the contract is still in force. Stram v. Miller, 663 S.W.2d 269, 277 (Mo. App. W.D. 1983).

It is well-settled law in Missouri that, in contract cases, the appropriate measure of damages is a question of law to be determined by the trial court based on the particular facts and circumstances of each case. Cornejo v. Crawford County, 153 S.W.3d 898 (Mo. App. S.D. 2005); Forney v. Mo. Bridge & Concrete, Inc., 112 S.W.3d 471 (Mo. App. W.D. 2003) (quoting Gee v. Payne, 939 S.W.2d 383 (Mo. App. W.D. 1997)); H & B Masonry Co. v. Davis, 32 S.W.3d 120 (Mo. App. E.D. 2000). The party claiming damages for a breach of contract bears the burden of proving the existence and amount of damages. Delgado v. Mitchell, 55 S.W.3d 508 (Mo. App. S.D. 2001); Am. Laminates, Inc. v. J.S. Latta Co., 980 S.W.2d 12 (Mo. App. W.D. 1998). As to the existence of damages, the fact and cause of the damages...