M. Foster Vinegar Manufacturing Co. v. Guggermos
| Decision Date | 24 June 1889 |
| Parties | The M. Forster Vinegar Manufacturing Company v. Guggemos, Appellant |
| Court | Missouri Supreme Court |
Appeal from St. Louis City Circuit Court. -- Hon. W. H. Horner Judge.
Affirmed.
Thos A. Russell for appellant.
(1) The instructions do not correspond with the pleadings. There is nothing in the plaintiff's reply that justifies the giving of the first instruction for plaintiff. "Courts do not possess the power to change by instructions the issues which the pleadings present." Bank v. Murdock, 62 Mo. 70. (2) An erroneous instruction given to one party is not cured by a proper one given to the other. State v Laune, 1 Mo.App. 371. (3) The instructions were not warranted by the facts. (4) The instructions were calculated to confuse and mislead the jury and were therefore erroneous. Donahoe v. Railroad, 83 Mo. 560; Greer v. Parker, 85 Mo. 107. (5) The instructions were inconsistent. This was error. Price v. Railroad, 77 Mo. 508. "If conflicting instructions be given, the judgment will be reversed." Stevenson v. Hancock, 72 Mo. 612. "A contradiction between two instructions, so far from correcting the evils of either, multiplies them in both." State v. Nauert, 2 Mo.App. 295.
Lubke & Muench for respondent.
There was no error in the giving of instructions.
This is an action by plaintiff on an account to recover a balance of $ 345.66 for a certain lot of vinegar sold and delivered to defendant between September 26, and November 10, 1884.
Defendant admits in his answer that he received the vinegar as charged in the petition, but denies his indebtedness therefor, and sets up by way of counter-claim that he bought the vinegar upon the guaranty of plaintiff that it would be of a certain grade, to-wit, "forty grains standard proof" suitable for pickling pigs' feet and tongues, in which business he was then engaged, and for which purpose, as plaintiff knew, he designed to use the vinegar; that in reliance upon the said agreement and representation of plaintiff, he used the said vinegar in his said business of pickling but that plaintiff knowingly delivered to him vinegar of inferior quality and less than forty grains standard proof, and that by reason of its unfitness, the whole of the product, upon which he used the same, was lost to him to his damage in the sum of ten thousand dollars.
The reply of plaintiff denied the new matter set up in the answer, and alleged further that it was understood at the time of the sale of the vinegar, that defendant would test for himself the vinegar as the same was received from time to time, and determine its fitness and suitableness for his uses; that the vinegar when delivered was of good quality and proper strength and that if it became otherwise, it was by reason of adulteration thereof by defendant; that defendant used all the vinegar, without returning or offering to return any part thereof, and without complaint until payment was demanded.
Under the pleadings, defendant assumed the burden of proof, and claimed and was given the right to open and close the case. The trial resulted in a verdict for plaintiff in the amount sued for and against defendant on his said counter-claim, and from the judgment had thereon defendant has appealed.
It is not disputed that plaintiff agreed to furnish defendant with the vinegar, of forty grains standard proof, but plaintiff insists that the evidence shows that the vinegar furnished was of that grade; that there is no evidence to the contrary, and for that reason the case should not be further reviewed by this court. As to this, the evidence shows that portions of the products, both pigs' feet and tongues, upon which defendant's evidence shows plaintiff's vinegar had been used, were returned to defendant by the purchasers thereof as unfit and spoiled. Defendant testifies that he examined the pigs' feet when returned, and that though sound, they had no taste, that is, that they had no sour taste, which the vinegar was designed to give, but were "just like they had been in rain water." Several witnesses testify that Mr. Wey, who was the agent of plaintiff in the sale of the vinegar and in the attempted collection of the claim, stated to defendant in their presence, that Mr. Forster, the general manager of plaintiff, knew that he sent defendant the twenty-nine grain vinegar during the last month. Defendant says that Mr. Wey stated that said Forster admitted the vinegar was only twenty-nine grains. Mr. Wey, himself, says on cross-examination, that he told defendant in the presence of the witnesses referred to that the last lot of vinegar was not over thirty grains, which he says he did because he thought it better to lose a cent on the last lot in order to get the money. This we think suffices to show that there is evidence of a tendency contrary to that in plaintiff's behalf as to the vinegar being up to the agreed quality and standard of forty grains. Besides this the plaintiff tried the case and by instructions induced the court to declare that this was the only question in the cause.
On the other hand, the contention of the defendant, that there is no evidence that defendant agreed to test the vinegar for himself, must we think be also regarded as not well taken. The testimony of Wey, for example, is direct and positive that defendant, at the time of the sale, said he would send the vinegar back if it did not come up to the forty-grain standard, and that the understanding was that plaintiff was to furnish the vinegar in ten-barrel lots, and that defendant was to test if for himself. Defendant himself testifies on cross-examination that This is, we think, to be taken, for the jury to consider, in connection with other statements of defendant in this behalf and other evidence of a contrary tendency.
The evidence shows that defendant used the vinegar upon fresh products, that is, upon "products" not cured in brine. The defendant so testifies. There is evidence by experts that pigs' feet, put up in warm weather, and not cured in brine, will not keep and cannot be safely shipped to southern climates, and that during the time in which defendant put up his said products, the weather was in St Louis too warm for the business of pickling fresh meat. There is also evidence that parties in St. Louis, New Orleans and other points, to whom defendant sold portions of these products put up with the vinegar in question, returned the same in a spoiled condition; that these were sold for...
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