90 S.W. 393 (Mo.App. 1905), Fountain v. The Wabash Railroad Company

Citation:90 S.W. 393, 114 Mo.App. 676
Opinion Judge:JOHNSON, J.
Party Name:R. M. FOUNTAIN et al., Respondents, v. THE WABASH RAILROAD COMPANY, Appellant
Attorney:Geo. S. Grover and N. T. Gentry for appellant. Thos. S. Carter and Gillespy & Conley for respondents.
Case Date:November 06, 1905
Court:Court of Appeals of Missouri
 
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Page 393

90 S.W. 393 (Mo.App. 1905)

114 Mo.App. 676

R. M. FOUNTAIN et al., Respondents,

v.

THE WABASH RAILROAD COMPANY, Appellant

Court of Appeals of Missouri, Kansas City

November 6, 1905

          Appeal from Boone Circuit Court.--Hon. A. H. Waller, Judge.

         REVERSED AND REMANDED.

          Judgment reversed and cause remanded.

         Geo. S. Grover and N. T. Gentry for appellant.

         (1) The evidence was not sufficient to establish that a contract was entered into between the plaintiffs and defendant's agent. Gann v. Railroad, 65 Mo.App. 670. (2) The trial court committed error in permitting two of the plaintiffs, Mr. Greene and Mr. Fountain, to testify to the contents of a telegram that they received from the Drumm Commission Company, to the effect that the price of cattle had gone down fifteen cents. Nothing short of a deposition, or evidence in open court, of someone connected with said business could be admitted to prove the matters contained in such a statement. Hoskins v. Railroad, 19 Mo.App. 315; Hess v. Railroad, 40 Mo.App. 202; Kent v. Miltenberger, 50 Mo.App. 480. (3) Error was also committed by the trial court in permitting the plaintiffs, Mr. Booth and Mr. Bartee, to testify that the price of cattle in Chicago and St. Louis was lower on the thirteenth day of October than it was on the sixth day of October. These gentlemen frankly admitted that all that they knew about the price of cattle in Chicago and St. Louis was what different commission men told them and what they learned from the newspapers. O'Neil v. Crain, 67 Mo. 251; Fogue v. Burgess, 71 Mo. 389; Cable v. McDaniel, 33 Mo. 363; 1 Greenl. on Evid. (Red Ed.), sec. 124; Railroad v. Johnson, 42 Ala. 242; McKelvey on Evid., sec. 141. (4) Error was also committed in permitting one of the plaintiffs, Mr. Green, to testify to the difference in the price of cattle in Chicago on October 12 and 13. This witness admitted that he was not in Chicago or St. Louis on either day, but that he got his information from the Chicago Drover's Journal and the Live Stock Reporter. (4) The trial court committed error in refusing to admit in evidence the written contract (the Wabash live stock contract) when it was offered in evidence by defendant. This was clearly a waiver of any claim that plaintiffs had against the defendant, and was based on a good, valid consideration, to-wit: The execution of a written contract and the obtaining of a special or reduced rate of shipment. Gann v. Railroad, 72 Mo.App. 38; Miller v. Railroad, 62 Mo.App. 259; Helm v. Railroad, 98 Mo.App. 423.

         Thos. S. Carter and Gillespy & Conley for respondents.

         (1) The evidence is amply sufficient to establish a contract to furnish the cars. Gann v. Railroad, 65 Mo.App. 670; Gann v. Railroad, 72 Mo.App. 34. Verbal contracts for the shipment of live stock have been upheld in many instances in this State and in other jurisdictions. Harrison v. Railroad, 74 Mo. 364; Miller v. Railroad, 62 Mo.App. 252; Gann v. Railroad, 72 Mo.App. 34. (2) Defendant complains of the admission of the evidence offered by plaintiffs as to the decline in the price of cattle. To hold that the business world cannot learn, and does not know, fluctuations in the price of almost every known commodity on the face of the earth by the market reports in the newspapers, and market journals and by telegraph and telephone, is to strike down the sources of all business knowledge. Railroad v. Patterson, 24 S.W. 349; Railroad v. Perkins, 17 Mich. 296; Railroad v. Daggett (Tex. Civ. App.) 27 S.W. 186; Railroad v. Pasture Co., 23 S.W. 754; Railroad v. Donovan, 86 Tex. 378; Fairley v. Smith, 87 N.C. 367, 42 Am. Rep. 522; to same effect is 70 U.S. (3 Wall.) 114. (3) The alleged contract offered by defendant was rightfully excluded. Gann v. Railroad, 72 Mo.App. l. c. 38 and 39; Harrison v. Railroad, 74 Mo. 364...

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